[VA] My husband is saying he will not do a divorce settlement until after custody is decided. What should I do?
My husband is saying he will not do a divorce settlement until after custody is decided. The court date for the custody trial is June 6, but he or I can file for divorce after May 11, 2025. I told him those are two separate things. Should I go ahead and present him and his lawyer with a proposal for divorce that does not include custody, or am I forced to wait? There was infidelity and alcohol misuse on his part, but proving that wouldn’t be worth the time and energy unless he decides to lowball me. What is your opinion on the back and forth here?
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In Virginia, alimony (spousal support) is based on several factors, including marriage length, financial circumstances, and the standard of living. (Virginia Code § 20-107.1(E)) After a 10-year marriage, alimony can be permanent. Courts do not allow unilateral deductions from future alimony without an agreement or order.
As for the 401(k), if the account was started during your marriage, then the entire amount is likely divisible. Retirement accounts earned during marriage are considered marital property.
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My husband is saying he will not do a divorce settlement until after custody is decided. The court date for the custody trial is June 6, but he or I can file for divorce after May 11, 2025. I told him those are two separate things. Should I go ahead and present him and his lawyer with a proposal for divorce that does not include custody, or am I forced to wait? There was infidelity and alcohol misuse on his part, but proving that wouldn’t be worth the time and energy unless he decides to lowball me. What is your opinion on the back and forth here?
Elizabeth
Hi there! Welcome to AskaLawyer. My name is Liz, and I’ve been an attorney for more than a decade.
So I can help best—what state are you filing the divorce in?
Virginia.
Elizabeth
Thanks. Does your spouse currently have an attorney?
Yes, and so do I. But he has a ton of money—I don’t.
Elizabeth
Got it. That must be stressful. Have there been any temporary court orders?
No. Just a custody trial scheduled for June 6 because my husband applied for 50/50 custody. We went to mediation and didn’t agree. Now his lawyer has asked for discovery—probably to increase costs. He's a criminal lawyer, so he’s used to being aggressive.
Elizabeth
Thank you for explaining that. You do have the right to request a bifurcation of the divorce. That means you can be declared legally single while custody is still pending. Have you settled any of the financial matters?
No. He is voluntarily giving me support, but I’m sure he plans to subtract it from any divorce settlement.
Elizabeth
So you’re asking if you should apply for divorce but leave out the custody and related child matters?
Yes. He says he won’t settle anything until custody is settled.
Elizabeth
Has the divorce been filed at all, or is custody the only pending matter?
No divorce has been filed yet. May 11 is when I can file—he left that day and never returned to live with us.
Elizabeth
That means you don’t have to handle anything other than custody for now. Once you can file for divorce based on separation, you can also request support. He cannot simply deduct interim support from the settlement unless the court approves it. Not providing support would be considered abandonment.
Can he deduct a year’s worth of support?
Elizabeth
From alimony possibly, but not from his 401(k) or marital property. Also, not from the timeframe for alimony.
He’s trying to say he’s supported me for two years, but he’s only been gone one.
Elizabeth
That doesn’t matter. Since nothing has been filed or ordered, voluntary support doesn’t get deducted unless explicitly agreed upon or ordered by the court. Also, how long were you married?
Almost 13 years when he left. He also claims I chose not to work—which is false.
Elizabeth
In Virginia, alimony (spousal support) is based on several factors, including marriage length, financial circumstances, and the standard of living. (Virginia Code § 20-107.1(E)) After a 10-year marriage, alimony can be permanent. Courts do not allow unilateral deductions from future alimony without an agreement or order.
As for the 401(k), if the account was started during your marriage, then the entire amount is likely divisible. Retirement accounts earned during marriage are considered marital property.
He didn’t get a 401(k) or any money toward it until after we were married.
Elizabeth
Then it’s likely that the entire balance is considered marital property.
So it sounds like it would be in his best interest to work out a deal with me—where I agree to less than what a judge might award me. But why is he and his lawyer insisting on no divorce agreement until after custody?
Elizabeth
Likely because custody affects child support, and they want to resolve that first. Custody doesn’t affect alimony directly, but if he becomes the primary caregiver, it could affect how much he pays in child support—which might influence negotiations about spousal support.
He wants 50/50 custody. If he takes our son from me (I’m the primary caregiver), then he’ll say I can work more and reduce or avoid alimony.
Elizabeth
That could be part of their strategy. Also, with no divorce filing yet, they don’t have to deal with division of assets or support at all right now. But remember: even if he pays child support, it does not eliminate alimony if other factors support it.
He works the night shift. I can’t believe courts think 50/50 is always best—it’s harmful. Children aren't furniture to move around weekly.
I understand. In Virginia, the court considers the child’s best interests. While 50/50 is common, it doesn’t have to be exact. Shared custody can be defined as either joint legal or a minimum number of overnights. If he wants 90 overnights per year to qualify for shared custody, that could be done through weekends and holidays.
I let him have almost any visitation he wants—mostly weekends.
Elizabeth
Then you’re already showing cooperation. If he works nights and you’ve been the primary caregiver, you can make a strong case for primary custody. The court considers parenting capacity, living arrangements, and work schedules. If 50/50 isn’t in the best interest of the child, that’s a valid argument in court.
Okay, thank you. I’ll move forward with what’s best for our son.
Elizabeth
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