“Am I going to have to pay spousal support?”
“I’ve been out of the workforce for fifteen years. Will I get any support?”
“It was my military service! Why should my spouse get a portion of my retirement?”
“I paid the mortgage every month. Why aren’t I getting a bigger percentage of proceeds from sale?”
“My spouse has never even attended a parent-teacher conference.”
Family law attorneys hear the above questions all the time. And, all the time, we have to tell our clients, whether good or bad, what their realistic expectations for their case should be. It would be irresponsible if we didn’t accurately represent possible realities to our clients. Sometimes when I review expectations with my clients, I like to ask that they assess their marriage as a business partnership. What were the terms of the partnership, what was its goal, what ethical and moral framework did it adopt, and what was each party’s role? How much and in which way did each party contribute to the business?
Just like business partners, each spouse in a marriage is tasked with different duties—all of which are equally valuable, but which each support a different aspect of the business. However, unlike a business, most marriages don’t have an exit agreement. So, upon dissolution, we family lawyers are left trying to piece together an exit strategy by reviewing the marriage, the circumstances leading to the dissolution of the marriage, the present situation of the client, and the objective goals of the client.
The idea of marital “contributions,” meaning how and to what each party contributed during the marriage, is present throughout the domestic relations code in Virginia:
- Virginia Code § 20-124.3 asks about the “role that each parent has played and will play in the future, in the upbringing and care of the child” in custody and visitation cases;
- Virginia Code § 20-107.1 asks about the “contributions, monetary and nonmonetary, of each party to the well-being of the family” in spousal support cases; and
- Virginia Code § 20-107.3 asks about the “contributions, monetary and nonmonetary, of each party to the well-being of the family” as well as about the “contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties” in equitable distribution cases.
The most important thing to note about the above-mentioned code provisions is the fact that they direct the court to look at both monetary and non-monetary contributions. Why? To use the most common example: because the non-working, stay-at-home parent contributes just as much to the objective of the partnership as the working spouse, whose income pays for everything. Both parties’ duties have value and both parties’ duties are necessary to the life of the partnership. So, for example, just because one party’s income paid the whole mortgage, doesn’t mean that they are entitled to the entirety or a higher percentage of the equity therein, because that person was only able to make that contribution to the partnership because the other party was making and was responsible for a different contribution.
Naturally, Virginia courts also examine factors beyond the marital contributions of each party. In ruling on spousal support and equitable distribution, both § 20-107.1 and § 20-107.3 direct the court to consider the “circumstances and factors which contributed to the dissolution of the marriage” as well as “such other factors” as are necessary or appropriate to reach a fair result.
But the ultimate moral of the story is this: yes, the choices and contributions you make during your marriage could possibly affect the outcome of your divorce.
Should You Have an Exit Strategy?
Premarital agreements (commonly referred to as “prenuptial agreements” or “prenups”) are still not that common. Typically, older couples, couples wherein at least one party acquired significant wealth prior to the marriage, couples wherein at least one party owns and operates a business, or older couples who have children from prior marriages or relationships, are the most likely to execute and enter into prenuptial agreements. However, there are several reasons why more couples might consider entering into a prenup:
- During divorce, people are emotional and potentially angry, neither of which are good states of mind when trying to assess and dissolve a marriage. A premarital agreement allows people to objectively divide their property and resolve many other potential issues in advance, prior to and without any of the emotions of divorce.
- For a party who acquired a significant amount of property or wealth prior to the marriage, or anticipates acquiring a significant amount of property or wealth after the commencement of the marriage, a prenup can potentially protect those assets.
- In the event you are a business owner, a prenuptial agreement may be a good way to ensure that said business remains whole upon divorce, and not divisible at the request of your spouse.
Whether you are already married and facing a divorce, or are just entering into a marriage and are interested in a premarital agreement, be sure to consult with an experienced family law attorney. The family lawyers at Livesay & Myers, P.C. have years of experience with divorce cases and the drafting, negotiation and review of separation agreements and prenups. If you are a resident of Northern Virginia, contact us to schedule a consultation today.