Episode 20: What To Do When…You are Trying to have a Uncontested / No Fault Divorce with Scott Cardani and Jackie Critzer.
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Episode 20: What To Do When…You are Trying to have a Uncontested / No Fault Divorce with Scott Cardani and Jackie Critzer.
Welcome to What To Do When….A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss What to do When, and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Jackie Critzer 0:31
Hi, welcome back to What To Do When… A Dummies Guide to the legal verse. Scott Cardani and Jackie Critzer Here at Critzer Cardani in Richmond, Virginia.
Scott Cardani 0:41
Exactly. What’s on the docket for today? I almost forgot what I was doing.
Jackie Critzer 0:44
Today it’s what to do when you are trying to have an uncontested or a no fault divorce. And also, whether those two are the same thing or different.
Scott Cardani 0:55
So what let’s just talk about so what does that mean uncontested? No Fault what is what’s that vocabulary mean?
Jackie Critzer 1:02
I think sometimes people think that there those those terms are synonymous. They’re really different. Let me just tell you why. Uncontested divorce means okay, we’re not fighting over grounds. We agree. We’ve been separated for a period of time, which we’ll talk about. We’ve also made an agreement as to all property and money and kids if there are any, retirement its debts, all those things are agreed upon. Uncontested fully uncontested, you’re good to get No fault really is a is a it’s just a piece of that. No fault means no one’s alleging any grounds, no abandonment, no adultery, no cruelty.
Scott Cardani 1:03
That’s always based on a set period of separation. Correct?
Jackie Critzer 1:42
Right… Absolutely. So so no fault is just there’s there’s no fault grounds, and requires a period of time to be separated.
Scott Cardani 1:53
And let me this gets everybody confused. I think maybe the simplest way to say it is this. You’re required to be separate and apart for a year, unless you have no children and you have a property settlement agreement already worked out.
Jackie Critzer 2:08
So many times I get the phone call, well, I thought was only six months? Well, it is six months, if you don’t have kids, and you have a Separation Agreement. Otherwise, it’s a year.
Scott Cardani 2:18
Otherwise, it’s a year. So think of it that way. So if you can get with your spouse and work out all the property issues, the equitable distribution, as we call it, issues, then you may be on the six month track. But if you can’t, then you’re on a year track. And again, remember, we talked about this earlier, but the hardest part about this is how do you start to separation, and we talked about that in another podcast. But it’s really important, you know, somebody at some point, most of the courts don’t consider separation, you being in the same house, and living out of the same checkbook and doing all those things. There’s a lot of points to that. And we can we’ve already discussed that. And we may discuss that in the future. I don’t want to get bogged down in that. But that’s really important. So So you have to know there’s two different things we’re talking about. If you truly have an uncontested divorce, you’re coming to us and say, Look, we worked out everything, kids cars, money, retirement, everything. All we need is an official document saying we’re divorced. That’s uncontested, right? No Fault is we’re not blaming each other. We’ve grown apart. We’ve been apart for a year, six months, and we separated everything. And that’s. So that’s another grounds that gives you the the right to file for divorce. So that’s what gets you into the courtroom or get your case started to file it.
Jackie Critzer 3:32
Right. Well, and I had a train of thought and went right down the track.
Scott Cardani 3:39
So we probably should cover a little bit real quick what a PSA is. Property Settlement Agreement…
Jackie Critzer 3:45
Is that the same as a Separation Agreement?
Scott Cardani 3:46
It is, and what it all that is is an agreement between two parties. And you know, in a day, we’ll do a little in depth dive in this. It’s not proper for here. But bottom line is it’s an agreement. It’s a contract between two people that they have sat down. And there have been cases where it’s been on a napkin. Sure. And you both agree that we’re going to do this with our retirement, we’re going to do this with a house. We’re going to do this with cars, we’re going to do this with Johnny and Jill. And we’re going to do this with anything else furniture in the house, all that stuff. So you’ve worked out everything, we’re we’re agreeing to all this and sometimes lawyers can help, you know, get that done and get a property settlement agreement done. It’s always a really wise thing to do. Because litigation costs are really high when you start fighting over who’s gets the records and who gets the phonograph and, you know, all those kinds of things. So it can really be an expensive process that way. So if you can work out those things or workout as much as you can, that’s always the best practice for your sake.
Jackie Critzer 4:45
Well, and I’ll say to that there are just like in every industry, there are attorneys who are going to try to take advantage of the situation they’re going to draw up a mostly one sided document and in a hopes of driving up attorneys fees, it’s important to really be it, I’ve read some that seem to have been drafted that way. It’s important to me when I mean, with my clients to really emphasize that I’m not going to draft a document that is so one sided, the number one, a courts not going to entertain it. And number two, there’s just going to end up in depth in more legal fees, it’s really important to try to draft it with the end in mind. And that is eventually property is divided. Five years down the road, you’ve been divorced for a period of time, what is your recovery looks like and to you, it’s not just today, what do I want to do today, because we have those clients who are like, I don’t care, just give her everything or just give him everything, I just want to get it out. But it’s, it’s part of our job to help you remember that there will be a time when the emotions are less charged, and you are going to wish that you would ask for part of his retirement or part of her retirement.
Scott Cardani 5:57
Or, the big one is sometimes spousal support. You think you just want to be gone, you don’t want to deal with spousal support. And then, a year and a half later, you’re struggling to pay your mortgage. And you’re like, Man, I wish Jackie didn’t advise me, right, I should have got spousal support. And all your friends are saying Why didn’t you get spouse forward? Well, you’re not going to go, Oh, I just thought it was a good thing that you’re gonna say, well, Jackie did it, she didn’t tell me to do that. So we’re, we really try again, this whole approach is to really listen to you. And to craft, whatever we craft that’s going to benefit you. You know, Jackie’s right, we don’t want to get into so one side, it’s ridiculous. But at the same time, we are going to draft it in your best interest. That’s the whole point of this. So you have to look at the total and I was looking at it this way you’re looking at whatever was created during the marriage is subject to separation and divorce. So I look at it as a pie in the sense of you know, there’s a lot of ingredients that went into that pie, a lot of different things. And what we have to do, the assumption going in is that flour be split 50/50, right, and each of you that have half a pie, and that may not be the case in the end, but that’s where you start. And you look at all those things. And then why wouldn’t she get half the retirement? What would be a hindrance that why shouldn’t you know, why shouldn’t I get spousal support, or those are the other factors. And when you’re in a no fault, as we’re talking about here, adultery, and those kinds of things that go against splitting the pie equally are gone. So there’s no argument for those things. So really, you’re dealing with pretty clearly a situation where you’re saying there’s no foul here. So most likely, you’re going to be in a pretty even split.
Jackie Critzer 6:47
So wouldn’t make a lot of sense to file an uncontested divorce and then go to court and fight over property, money retirement things. Mostly because a court, like Scott just said, it’s just gonna divide it pretty well down the middle. And if there was a battleground of there’s a reason not to, then there’d be a different story. So so we don’t see that very often. Most of the time, a no fault is in fact, also an uncontested divorce. And the best way to accomplish that is with an agreement, a written agreement. Now there are rules and statutes that, that support marital agreements and what needs to be in them and what what shouldn’t shouldn’t be addressed in them, who can write them and Scott’s writing me on a napkin, it can be between the spouse, the spouse is just they can they can write it themselves. I will tell you, though, I’ve seen some of those homegrown, or I pulled this off the internet sort of property settlement agreement or separation agreement. And they’re not robust. They’re not thorough. Sometimes they don’t even cover some of the basics. I have one that I’ve been looking at recently that even they pulled it off the internet, one of the parties did and it says something to the effect of this isn’t the final agreement. And it will not be incorporated into the divorce. We’re gonna agree in a future agreement. I thought, oh, boy, this is this is bad. This is setting the parties up for very expensive litigation, which is now what I’m involved in.
Scott Cardani 9:01
Yeah, we just have to you know, again, it seems to make sense to want to cheap it and do it simply and especially, you know, you don’t want to be paying us for something but at the same time you should sit down even if your wife you come home and your wife hand you a Separation Agreement today, we’re done. We’ve been done for a long time, take the time to take it to a lawyer and you know, don’t go to a lawyer and go hey, we this isn’t okay. Because he doesn’t have the your financial documents, he doesn’t have anything. So you really do want somebody to look at it. I mean, if you you know, you don’t need to give them every piece of paper. Here’s my bank statement for 10 years, but you may want to have a nice summary. Here’s what we have in retirement. Here’s what you have in savings. Here’s here’s what we have cars wise, here’s what our mortgage is and what’s left and the more you know, we own our house, we own 17 business, whatever it is, you want us to have pretty good perspective of what there is and then we will probably ask you some questions. What about this? Oh, I didn’t think about that. You know a lot of times people forget about like car cars because they both had their own cars for years, and they don’t really share cars and like, you still have to put, you still put in agreement, just problems. And maybe it’s titled, how things are titled matters, you know, whether it’s titled parties, both names or owners thing. So, you know, our point is no fault, you see a lot of no faults for 50 bucks or 100 bucks on the internet. And, you know, I don’t know, though I don’t, I’m not judging anybody in that, I’m just saying, sometimes you get what you pay for. You know, you really need somebody’s gonna sit down with you and look at your full situation, even in a no fault divorce, where you’re saying that this is just us, we got to the end of the road, and we realized we’re not compatible. You know, or I’m not willing to work on it, whatever the case may be, that’s usually more in, but um, you know, we need help getting the separated and just make sure you walk through all the issues, you know, my wife doesn’t want to get an attorney, we don’t want to spend the money on an attorney. That’s okay. But even in those situations, I kind of advise, you know, you should have somebody look at it, you know, she can choose not to, but she should have somebody look at it.
Jackie Critzer 11:03
So actually, I was just about to head down that road about representation. So first and foremost, it’s important for everyone to understand that we can’t represent both the husband and the wife. Yes, that is a major, major nono that the Virginia State Bar would would come down on us really hard. Even if you agree for everything, oh, we have a total doesn’t matter, I cannot represent both of you. Because I can’t look out for both of your best interest. It’s like a duel. When a realtor does the buy and the sell. They can, but they can’t really be effective for both. They were sort of somewhere in the middle. And we’re called to a higher standard than that and the legal profession. But when I draft an agreement, okay, and I say, okay, here take it. And they say, Well, do they have to have an attorney look at it? Of course they don’t. But they should. Because if you’re receiving that, right, your you guys decided that he’s going to go and he’s going to pay for the lawyer and he’s going to have his lawyer drafted. And you’re looking at it. And should I talk to an attorney? Yeah, you should. Absolutely. You should. Even if you had everything agreed to you need to make sure that it adequately and accurately reflects the agreement that you thought you had. Because what if it doesn’t, and you sign it?
Scott Cardani 12:13
Exactly. Yeah, you know, what if there was one, you know, it, I honestly don’t find this as much. But when I started a long time ago, I would find a lot of little tricks and agreements like phrasing is a certain way to flip the words like, you agree that what was the one I’m trying to think even spouses for you, there’s some specific language that you forever wave spousal support. And one of those words being flipped in there the wrong way can make it say that you forever agree to espouse a sport, just the way it’s worded. And all sudden, you what you thought you signed, you didn’t sign. So I have to say, in the last 10 years, I’ve seen very little of that when I first started, I used to see a lot of it, quite frankly, I’d have to read everything like that. Not that I don’t read everything. But I mean, I was looking for I was looking for that I was looking for. And I still do, quite frankly, because I was so bothered by it at the beginning of my years of practice. So you gotta be careful. You may read something that you think is legit, but lawyer, legal. legalese may be in there that may totally turn up turn on its head what you think is a simple agreement, but it is. That’s the other side. I would say it’s important to keep it simple. You know, I think sometimes when you get too verbose in language, you can. The judge looks at it two years later. So I don’t know what the heck you’re saying. There’s just too much there?
Jackie Critzer 13:35
Well that’s a good point, it does have to be clear, the reader needs to be able to understand what the agreement was because the reader, the judge is interpreting it. Let’s say it’s a it’s a contract provision. And I know we’ve gone down this rabbit hole PSAs. But it’s important. Let’s say there’s a provision and at the time you drafted it, you and your spouse are scrolling it out on your legal pad or your napkin, whatever it was, and you thought you understood what the other person meant. But it’s not clear in the words and the writing. The judge is the one who gets to decide that and Well, depends on the day depends on the judge. So it is important to have someone who is is skilled in the in the drafting of agreements. But I wanted to also point out that you can also include custody, child custody, legal custody, physical custody, child support, these all all of these legal matters that we talked about in our podcast, don’t have to go to court and be litigated. We don’t have to go fight. You don’t have to go spend the 1000s of dollars that it cost to do that sometimes 10s of 1000s of dollars, you can reach an agreement. It’s not always possible. But but you know, and I love going to court that’s I think we love going to court and it’s just part of what we do, but most of you people watching do not enjoy going to court, and there is a way to avoid it. But if you don’t have a skilled attorney on your side, to both advocate for you in court and also help you stay out of court to the extent possible. You’re really fighting an uphill battle that could leave you bruised and battered for a long time.
Scott Cardani 15:01
Yeah, and quite frankly, even if you don’t like that the marriage has ended being fair, and trying to be fair minded about how to resolve it is, quite frankly, always your best step because it does, you know, save you a lot of litigation costs. Now, if you’re in a position where you don’t mind that litigation costs and things like that, but some people, I have literally seen cases where the total assets are $20,000. And they’re paying the lawyers, both 20 $25,000. So they’re in the hole $20,000 $30,000. And they got nothing, they got zero in the end, all they got was debt. And I’m like, it’s painful for me, because I hate to see that for people. So, again, you got to look at what you have, what’s worth fighting over? What are the things that are important, and really sit down and have that humble conversation don’t, I would say, don’t work out of the anger that the thing is ending. And you’re not you don’t like how it’s ending or any of that part. And that’s, that’s important. You have to emote that you have to deal with that. So I would deal with that before you sit down to go. Okay, what’s a reasonable agreement? And how’s that going to look and and then you come to us. So I guess the takeaways today for a no fault divorce is there’s two things, there’s a no fault divorce and an uncontested divorce. And they’re both statutorily driven. But the bottom line is, is both of them have to be a year unless you have a PSA and you have no children.
Jackie Critzer 16:20
Absolutely. A PSA helps you stay out of court in totality. So that means you had a property settlement agreement or separation agreement that goes with your no fault divorce, which makes it entirely uncontested. And that includes all matters from the marital estate, custody support, cars, houses, retirement, every aspect that could be included in a contract is then included in the agreement.
Scott Cardani 16:48
And finally, you know, you can go with a no fault divorce and still go to court. If you think there’s some issues that it doesn’t mean you have to avoid court / fearful of court. Because there may be a retirement issue that you think needs to be litigated. He’s not willing to agree to 50% of his retirement because he says this, this and this, and maybe that’s something that we have to you know, or the custody piece or one other piece meat needs to be litigated. That’s okay. We can do that in an uncontested posture. That doesn’t mean that we have to allege adultery to get there. We can go to court, you’re separated a year and say, Okay, these are the things we agree on. And maybe it’s nothing but there may be it’s we agree on these things. And we don’t agree on these things. And usually, if we have a competent lawyer on the other side, they’re pretty good about, we do what’s called stipulation sometimes, and they’re like, we agree to these 10 things, but we don’t agree to these four things and judge we need you to decide. Absolutely. Thank you. Have a great day.
Jackie Critzer 17:39
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