When minor children are involved in a divorce, custody and visitation tends to be the biggest concern of the parties, especially when circumstances are not amicable. It may be tempting to wait until your children legally emancipate to avoid involving custody and visitation in the divorce, but is that a wise choice? Let’s discuss further:

Is there a benefit to waiting until my children are 18 to get divorced?

There are a few benefits to waiting, such as:

Mandatory Separation Shortens.
The most significant benefit is that the mandatory period of separation shortens. In Virginia, if minor children are involved in a marriage or if a couple without children does not agree upon the disposition of the assets and debts of the marriage, they must be separated for one year to get divorced. If there are no minor children involved, or if a couple without children agrees to a disposition of the assets and debts of the marriage, they may be divorced after being separated for six months.

Maximum Access to Children born to the Marriage.
If the parties choose to continue living together but maintain an in-home separation, which occurs when the parties sleep in separate rooms, live separate lives and abstain from sexual encounters, they both have access to the children as much as possible since the family continues residing together.

Flexible Custody and Visitation.
Generally speaking, if parties choose to delay their divorce until their children emancipate, they do not formalize a visitation schedule. Without a formal schedule, custody is flexible and may be adjusted as necessary without concern for an existing agreement or legal ramifications.

May remove stress from the Children of the Marriage.
Avoiding formalizing custody and visitation terms also means that the pressure is removed from children born to parties from having to vocalize their opinion on which parent they want to primarily reside with, if the children are of age that their opinion should be considered, which in Virginia is age fourteen.

If you and your spouse will be living in the same residence pending the finalization of the divorce, you may be concerned about your children overhearing conversations, reading documents, or being informed of circumstances by your spouse. By waiting until your children have moved out of the house, maintaining discretion becomes a less difficult task.

Potentially Lower Cost.
Another benefit is that by removing custody and visitation from the equation, the cost of the divorce usually decreases, as there tends to be significant work involved in finalizing a custody and visitation arrangement.

What are the negatives to waiting until my children are 18 to get divorced?

Although there are benefits to waiting, there are significant negatives that must be considered, such as:

No repercussions for uncooperative parents.
If you are the parent of a senior in high school, getting through less than a year of having to coordinate custody and visitation without an agreement may seem reasonably achievable. However, if your children are younger, having to coordinate custody and visitation for years can be a constant source of conflict.
By entering into a formal custody and visitation agreement, there are specific terms for parties to follow. Generally speaking the parties compromised to reach this agreement, so the terms are often fair. If a party chooses not to follow the agreement, the other party may seek legal remedy to enforce the agreement.
While not having a formal custody and visitation agreement can offer families the maximum amount of flexibility possible, this flexibility is not always a good thing.
Without a formalized custody and visitation agreement, there is nothing to hold the parties accountable to what they agreed upon. For example, many custody and visitation agreements specify that if the non-custodial parent fails to contact the custodial parent to arrange visitation by a certain time they forfeit visitation.

Potential for Increased Legal Fees.
Without formal terms, uncooperative parties have the ability continue to be difficult to coordinate and communicate with unless legal action is taken to get a custody and visitation agreement or order. Generally speaking, if a spouse is being uncooperative, entering into an agreement is not always possible.
The other way to have formal terms of custody and visitation applied is for a Judge to enter an Order in Court; while this is an effective way to find relief from an uncooperative party, the legal fees associated with litigation far exceed legal fees that would be spent entering into an agreement.

If you are sure that you want to end your marriage, it is best to do so efficiently, not to wait, in terms of protecting yourself from liabilities that your spouse could potentially cause you to become involved in.
By staying married to someone, you expose yourself to liability, especially when finances were jointly maintained. In the eyes of the law, if a party files bankruptcy after a divorce, their former spouse is not impacted at all. However, if parties are still legally married but were living separately, the marriage remaining legally valid could negatively impact the other party.

Emotional Complications.
Depending on the sensitivity of the children born to the marriage, waiting to finalize the divorce can be difficult for them to process emotionally. They may hold out hope that their parents will get back together, or it may be difficult for them to watch their parents continue to be unhappy. This has the potential to impact the relationships they have later in life.

How do I decide when to initiate my divorce?

While this is a personal decision that you must make for yourself, there are two ways to help determine what the best course of action is:

Consult with a lawyer.
Schedule a consultation with a lawyer to discuss your circumstances, that you are considering delaying your divorce and why you are considering doing so. The lawyer will be able to tell you what they recommend as the best choice for you based upon your circumstances and what potential legal ramifications exist. The attorneys at The Hopkins Law Firm have extensive experience with divorces involving child custody and are waiting to discuss your legal matters; to schedule a consultation they may be reached at 571-248-2210 or

Consider your spouse.
If you and your spouse are on good terms, generally agree on matters regarding the children, and work through disagreements well, waiting until your children are eighteen to formalize the divorce could reasonably work. However, if you and your spouse are not on good terms, waiting to finalize the divorce is probably not a wise choice. When parties are not able to coordinate in an amicable manner, a formal agreement is a way to potentially improve co-parenting.


Waiting until children born to the marriage are eighteen to finalize a divorce works for some families, but it is not a wise choice for everyone. If you are unsure what the right course of action is, please contact The Hopkins Law Firm at 571-248-2210 or to discuss your specific circumstances and receive legal advice as to what would be best for your situation.


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