A Family Law Judge Comments on Divorce

A while ago I spoke with a family law judge --  now retired from handling family cases in Fairfax County -- about issues involved with divorce.  These include adultery, custody, spousal support, absentee parents, counseling, spying on your partner's email, and property distribution. Here are some of his views.

Adultery may have almost no effect on a judge’s decisions about custody and visitation. What matters is what is best for the child. The fact that your ex cheated on you does not automatically imply that he or she is a bad parent. (It may, however, affect a judge’s decisions about spousal support and property distribution.)

Many people who were absentee parents while married really do get themselves much more involved in their children’s lives after separation. Consequently, the fact that one parent seldom met the kids’ teachers, took them to doctors or dentists, or even attended their soccer games while married does not automatically mean that the other parent will get sole custody. If separation made a parent reassess his or her life and become much more involved with the kids, that is good for the kids. What is best for the kids is what matters to the Court.

Sleeping on an air mattress will not harm a child. Never seeing one of his or her parents will harm a child.

If you need treatment for anxiety or depression, get it. Judges know that the emotions and processes of divorce are distressing. They generally regard your asking for help as a good thing. Not getting help that you clearly need will make you look bad to the judge. If you fail to reach an agreement through family mediation or other negotiations, a judge is the person who will decide how much your kids should be with you.

With few exceptions, marital property is everything the two parties earned from the date of marriage to the date of separation. This includes retirement accounts. Dividing the assets and debts from a marriage is very much like dividing the assets and debts when a business partnership ends. 

Do not read your spouse’s email unless he or she gives you permission to do so. Poking around in it without permission is a crime. Anything you find would not be admissible in court.

Over 90 percent of mediated divorce cases end with a settlement that is acceptable to both parties. Over 80 percent of cases handled by divorce attorneys who are trying to reach a settlement do settle before going to trial. When a case goes to trial, it is very expensive, the parties are gambling (cannot determine the outcome), and the judge’s ruling may be appealed, which will keep everything unsettled for many more months and will be even more expensive.

Fairfax County has the same laws as the rest of Virginia. Laws and judicial tendencies vary from one state to another.