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Frequently Asked Questions
Virginia law provides for divorce on both a “no-fault” and a “fault” basis. The most common basis for a fault divorce is adultery, cruelty (also referred to as “constructive desertion”) or desertion. Of course, there are various means of defending each of these grounds. You should understand, moreover, that divorces often are granted on no-fault grounds even after fault is established. It appears that many Judges are unwilling to stigmatize one party by finding him or her guilty of fault. The grounds on which the divorce is awarded generally is a decision made by the Judge. Frequently, when a case proceeds to the final stages, sufficient time has elapsed to award a no-fault divorce, and that is the route chosen by many Judges.
After I separate from my spouse, can I begin a sexual relationship with someone else?
A common misconception about divorce in Virginia is that the possibility of adultery ceases to exist once parties are living separately. This is untrue. Until a Final Decree of Divorce is entered (i.e., until the marriage is legally over), you and your spouse remain married. Sexual intercourse outside of marriage is adultery regardless of whether the parties have separated or not. If both spouses commit adultery, however, then neither may use the other’s adultery as a ground for divorce. As will be explained, adultery can have very serious ramifications for spousal support issues. It can become an issue in custody and property disputes. We strongly recommend that parties avoid even the appearance of sexual impropriety during their separation. It is not uncommon for one spouse, for instance, to have the other followed by a private investigator during the separation, and then to bring an action based upon adultery occurring during the separation period. Regardless of what the final outcome is, allegations of adultery are certain to elevate your attorney’s fees and stress level.
When can I file for divorce?
If you are seeking a divorce based on fault grounds, you can file as soon as the circumstances giving rise to the grounds exist. No-fault divorce requires that parties live entirely separate and apart for a specified period. If the parties have minor children, that period is one year. If there are no minor children and the parties have entered into a written agreement, a no-fault divorce may be sought after six months have elapsed. (The Court rarely grants a final divorce, however, until all property and support issues are resolved.) It is possible, although rare, for parties to live completely separate and apart while residing at the same address. To complete a separation period while living under the same roof, the parties must essentially maintain separate households. Not only would they have separate bedrooms, but they would also not eat together, socialize as a couple, or share household chores (such as one party doing the other’s cooking or laundry).
How a divorce is begun.
A divorce action begins in the Court when a document called a Complaint is filed. The Complaint states the grounds upon which the divorce is being sought and describes the relief that the party is requesting (division of property, custody of children, support, etc.). The party who files the Complaint is known as the “Complainant” or “Plaintiff” the other party is the “Defendant.” If a party is seeking a no-fault divorce, the parties must have been separated for the entire required period before the Complaint can be filed. This means that if parties have children and/or there are property disputes between them, one year must elapse before a Complaint seeking a no-fault divorce can be filed.
Does it matter that I am the defendant?
Occasionally people are concerned when they are made the defendant. The title means nothing except that the other spouse filed a complaint first. There is little or no significance to being the complainant or the defendant. In addition, a divorce can be filed on fault grounds but later changed to a no-fault divorce (the legal term used is “merged”). Nearly all divorces that are filed on fault grounds end up being finalized on no-fault grounds.
How will I know if my spouse has filed for divorce?
The complaint must be served upon the other party. Service is usually accomplished when a sheriff or a private process server delivers a copy of the complaint to the other party. In the alternative, a defendant can accept service or can waive it. After the complaint is served, the defendant has 21 days to file an answer and, if she or he chooses, a counterclaim (or counter-complaint) for divorce.
What happens before the divorce is finalized?
If the parties are unable to agree on a temporary financial or visitation arrangement, either party may set a pendente lite hearing. “Pendente lite” means while the suit is pending. At this hearing, a judge will set temporary child and spousal support, if any, and a visitation schedule, and may address certain other issues. Most judges will not make a custody ruling of any kind at a pendente lite hearing, other than preserving the status quo. Unfortunately, this does leave the parties somewhat to their own devices with regard to custody during the separation.
In setting temporary support, judges almost always use specific guidelines. A judge may order a party not residing in the former marital home to contribute to the mortgage. Other orders at a pendente lite hearing can include orders enjoining (prohibiting) either party from wasting marital assets, awarding one party temporary use of the home, enjoining the parties from harassing each other in any way, and ordering one party to make a contribution to the other’s attorney’s fees to enable that party to carry on his or her case.
How is the divorce finalized?
If every issue in a divorce is contested (custody, property, support, and grounds of divorce), generally one or two separate comprehensive hearings/trials are required. These hearings/trials are in addition to the pendente lite hearing discussed above and any intermediary motions. The hearings/trials are the custody trial and an equitable distribution trial (usually referred to as “e.d.”), at which property is divided and final support set. These are distinct hearings/trials, and they can be separated by several months on the calendar. In some northern Virginia jurisdictions the custody and e.d. issues may be combined into one trial.
As will be explained, any or all issues in a case can be settled, eliminating the need for some or all of the hearings/trials discussed above. Do not assume that you will be required to go through the entire process and each of the hearings described. Before considering settlement possibilities, however, it is imperative that you understand the legal process, which will take place if settlement does not occur. Each of the three hearings mentioned above is described below. The more contested the hearings, the more expensive your case will be in terms of attorney’s fees.
What happens if we have a child or children?
At the time the complaint is filed, certain forms must be completed and submitted to the court. One of these forms will ask whether custody is in dispute. If it is, the court has certain procedures that are required when custody is at issue. The most important of these is requiring most parties to attend mediation to try to resolve the custody issue without a trial. Mediation will not, however, be ordered in cases where it is deemed inappropriate (such as when there are allegations of abuse).
What if my spouse and I cannot agree on all custody issues?
If the custody case is not settled, the court will conduct a custody trial. At the end of that trial, a Judge will determine custody and visitation. Custody can be sole custody, joint legal custody (with one parent having primary physical custody) or joint physical custody. The court has great discretion in establishing the custody arrangement. The court’s decision is to be guided by the best interests of the child, and the code provides a list of specific factors for the court to consider in making that determination. The court can order a psychological evaluation at the request of either party and can consider the results of that evaluation in deciding custody. The judge can speak with the child whose custody is at issue. However, in most cases the parents wisely choose not to drag the children into the middle of their dispute. If a child is asked to speak to the judge, these meetings generally occur in the Judge’s office; it is extremely rare for a child to testify in open court.
If it appears that custody in your case may be litigated, it is important that we discuss the preparations for that trial as soon as possible, including who your witnesses will be. Every custody case is different. There are, however, certain warnings, which every parent in a custody case should take to heart. The first is never to denigrate (i.e., “bad mouth”) the other parent within the presence or hearing of the child, and never to allow anyone else to do so. Few things make a Judge as angry as this conduct. A good policy to follow is simply “never an unkind word” when you or others are talking about the other parent. At the same time, few things please a judge as much as one parent’s demonstrated commitment to fostering their child’s relationship with the other parent. Encourage your child to have free communication with the other parent, and encourage visitation or other contact. Share information regarding your child without waiting to be asked. If you receive an important document (medical or school report, for instance) about your child, make a copy for the other parent and forward it promptly with a cover letter. Keep a copy of the cover letter for your records.
How can I protect my child(ren) during a divorce?
Neither parent should discuss the custody case with a child nor allow any child to review legal documents. There should be no discussions beginning with “Guess what [your dad/mom] did now….” or an interrogation of the child (such as what he or she did while visiting the other parent) unless there is a compelling reason, such as danger to the child. Do not use your child to convey messages or documents to the other party. Do not allow a child to dictate the visitation schedule, although of course the child’s wishes can be considered and discussed by parents. Do not argue with your child’s other parent in the presence or hearing of the child. You should, however, listen carefully to your child’s concerns and make notes and tell us about any unsolicited comments (please do not pump your child for information) that you believe may be relevant. A diary-type calendar is a great idea to document all important events. Communications between parents should be in writing. Email works well as long as you do not use it as a sword to attack the other parent. Remember, anything you say or record will likely come into evidence somehow in the future if the case goes to court.
Many parents find that it is helpful for their child to meet with a mental health professional during this time. Please discuss this possibility with us. Testimony from a neutral custody evaluator can be very helpful during a custody trial. Finally, some of our clients have found very helpful a book titled, “The Good Divorce: Keeping Your Family Together When Your Marriage Comes Apart,” by Constance R. Ahrons, Ph.D.
What is equitable distribution?
Equitable distribution, or “e.d.,” is the process by which the court divides marital property. The court’s job in this trial has two steps. The first is to determine what property is marital, as opposed to separate property. The second step is to divide that property. There is no presumption that marital property must be divided equally; the statute lists a number of factors, which the court is to consider before arriving at an equitable award of marital property. To further complicate matters, it is possible for an item of property to be part marital and part separate.
What is separate property?
You need to let your lawyer know immediately if you hold any property that you believe may be your separate property. Please note that title does not determine whether property is marital. For instance, simply opening a bank account in one’s name alone does not make the account “separate.” Separate property usually must be the direct result of funds or property acquired either before the marriage or after the separation. “Tracing” is the term used to describe the complicated process of segregating separate and marital portions of property.
What is discovery?
As part of the divorce process, you most likely will be required to respond to what is called “discovery,” which is the general term for various means by which you and your spouse will be required to disclose information. Your attorney will probably serve discovery on your spouse, which he or she will be required to answer. Your spouse’s attorney is likely to make the same request of you.
Discovery usually consists of at least two sets of documents. The first is called “Interrogatories.” These are written questions, to which you must respond in writing under oath. Inquiries are likely to address both financial issues (account balances, the value of property, debts, etc.) and nonfinancial issues (the reasons for the dissolution of the marriage, adultery, evidence in support of your position on custody, etc.). The second means of discovery likely to be used is called “Request for Production of Documents.” This request is in the form of a list of documents, which the party must provide if he or she has them. Documents requested usually include all account records (statements, canceled checks, etc.), deeds to property, tax returns, pay stubs, credit card statements, and so forth.
What can I do to speed along the discovery process?
If you do have such documents in your possession, it probably is a good idea to try to separate and organize them in advance. Once discovery requests are delivered to this office, you normally have 21 days to respond to them. For many clients, this is not adequate time. Although an extension can be obtained, you do want to provide your responses as quickly as possible.
Are there other types of discovery?
There are other means of discovery in addition to Interrogatories and Request for Production of Documents, but they are not as commonly used. These include depositions and Requests for Admission.
Can I get money from my spouse to pay for my attorney?
As you may know, the Court has the authority to order one party to pay a portion of the other party’s legal fees. An award sometimes is made at the pendente lite hearing. An award also can be made at the conclusion of any Motion during the case, or at the end of the case. Do not assume that an award will be made. Moreover, even when an award is made, it seldom comes close to covering all of the fees incurred. You remain responsible for your fees until an award is made and paid by your spouse. You also remain responsible for any portion of the fees not covered by the award.
When will the court award attorney’s fees?
In our experience, an attorney’s fee award usually is made for one of three reasons. The first, and most common, is simply that one spouse has far greater financial resources than the other. If one spouse earns a significantly greater salary than the other or has substantially more property, the resulting income or financial disparity often is the basis for a fee award. The second reason for an award of fees is if one spouse conducts himself or herself unreasonably during the litigation (for instance, failing to respond to discovery, violating court orders, wrongfully using funds). The third basis for an award of fees is if one party has been unreasonable in settlement negotiations or has refused to engage in meaningful settlement discussion, increasing the other party’s fees by forcing him or her to litigate unnecessarily. The fees that are awarded based upon the second and/or third categories generally are much less than those awarded due to a disparity in respective incomes.
What is the alternative to litigation?
We hope that after reviewing all of the above, you have a better understanding of what you should take into consideration when discussing settlement. Litigation of issues is time-consuming, is costly and can be emotionally draining for parties. Settling a case is not a sign of weakness. It does not mean that you do not believe in your position, or that you are “afraid” to go to Court. Settlement should be the result of objective consideration of the strengths and weaknesses in your case, rather than anger or fear. Settlement options should be weighed against the financial cost of litigating. For instance, it is difficult to justify spending more money litigating a case than is actually at stake given the value of the marital property (obviously, this does not apply to custody, which carries with it nonfinancial issues). Even in custody cases, you need to think carefully about whether an issue warrants the legal fees it may consume. If you and your spouse are able to agree on any issues, you will not only reduce your legal fees but also begin building momentum toward resolving other issues.
What is the settlement process?
The mechanics of settlement negotiation can be handled in a number of ways. Custody disputes often are referred to mediation, in which the parties sit down with a neutral third party and try to develop an agreement. The mediator does not make a decision or recommendation; instead, he or she tries to help the parties communicate and reach their own decision. Another means of settlement negotiation is by correspondence between attorneys, exchanging proposals and conducting a dialogue in that way. A four-way meeting can be set up, which each party attends with his or her attorney to discuss settlement. Another means used is a Neutral Case Evaluation (NCE), which is similar to a four-way meeting, but includes an impartial, experienced family law attorney who assists by offering his or her observations about each party’s position at settlement.
Should I immediately sign an agreement reached with my spouse?
No matter what means of settlement is employed, it is important to remember that you should never sign any document unless your attorney has reviewed it. There have been cases where parties tried to write their own agreements, or where one party presented an agreement to the other, and the document was signed without any attorney having reviewed it. To proceed in this way is to invite disaster. In signing a document, you may be waiving certain critical legal rights and assuming obligations, which you do not even realize exist. For instance, if you sign an agreement that establishes support at a certain level or waives support, you may never be able to change those terms, no matter what happens in the future. You should not sign any agreement unless your attorney has reviewed it. Any agreement affecting property or support rights also should be reviewed by a tax professional. The means in which a settlement is structured often can have dramatic tax implications, and you should seek advice as to how to avoid incurring unnecessary tax liability. If you do not have a tax professional, ask your attorney to recommend one for you to consult.
What happens once I reach an agreement with my spouse?
Once an agreement is reached, it is a good idea to have your attorney prepare a comprehensive written document that sets forth that settlement. Such an agreement then can be incorporated into a Final Decree of Divorce. Parties can settle any issue, whether financial or custody-related, by agreement. While financial settlements between parties usually are final, the Court retains the ability to change custody and child support issues at any time until the children reach majority. The Court has the ability to modify spousal support set in an agreement only if the agreement specifically authorizes the Court to do so under present Virginia law.
How do I choose an attorney?
There are many resources to assist you in choosing an attorney. Here are a few suggestions:
- Ask around. Chances are that you probably know at least one other person who has gone through a divorce. Ask friends, family, or co-workers if they were satisfied with their attorneys, or even if they were impressed by their spouses’ attorneys.
- Check credentials. Contact the Virginia State Bar (707 E. Main Street, Suite 1500, Richmond, Virginia 23219-2800, Telephone: (804) 775-0500, Office Hours: M-F 8:15 a.m. to 4:45 p.m., http://www.vsb.org) and find out if there are any complaints against a particular attorney.
- Martindale-Hubbell. Martindale-Hubbell is the oldest and most reliable attorney rating organization.
- American Academy of Matrimonial Lawyers. To be a member of the AAML, an attorney must be recognized by judges and attorneys in his or her jurisdiction as an expert in matrimonial law. The AAML website contains a directory of its members (http://www.aaml.org).
What if I am afraid to be in the same home as my spouse?
If you are concerned that your spouse’s behavior is posing a threat to the safety of you or your children, it is important to act quickly to prevent further harm to yourself and your family. If you believe that you are in immediate danger do not hesitate to call the police. If your spouse’s behavior is in violation of an order that has been entered in your case, be sure to have a copy of that order on hand to show to the police when they arrive.
You may wish to have a preliminary protective order entered against your spouse. A preliminary protective order is a temporary order that prevents the person against whom it is entered from having any contact with you or other family members. This order stays in effect until a hearing can be held. At the hearing, the court will determine whether the petition for the protective order should be dismissed, or whether a protective order should be entered. A protective order may be entered for a period of up to two years.
The protective order process can be initiated without an attorney. To obtain a preliminary protective order, simply contact the Intake Office at the Juvenile and Domestic Relations District Court for your jurisdiction. The Intake Officer will schedule a time for you to come to his or her office to have the order entered. A preliminary protective order is different from pressing criminal charges against your spouse. When you discuss your case with the Intake Officer, be sure to emphasize that you are seeking a preliminary protective order, not criminal charges.
Another option is to file a complaint for divorce on the grounds of cruelty and constructive desertion. Once the complaint has been filed, a hearing can be set for the purpose of granting one of the parties exclusive use and possession of the marital residence. Once the order is entered, the spouse against whom the order is entered will be required to leave the marital home. The court also has the authority to enter an order enjoining either party from harassing or bothering the other party.