What You Need to Know About Separation and Divorce
Section I – The Basics of Virginia Domestic Relations Law
Section II – If You Haven’t Yet Separated
Section III – If You’ve Already Separated
Section IV – If You’re Ready to File for Divorce
Section V – If You’re Involved in a Contested Divorce
Introduction and Disclaimer
The purpose of this section of our website is to provide a place where our separation and divorce clients can go to have their basic questions answered – a sort of huge FAQ file. Each major section is followed by a series of questions and answers. These are the questions that, from our experience in several thousand initial consultations, you probably would ask us in such a consultation.
If you decide to retain our firm, you may want to revisit this site from time to time to refresh your recollection of the subjects we’ve covered, and to get answers to new questions that arise. In time we hope that you will be moved to contribute one or more of your questions, or to suggest answers to existing questions, for the benefit of others to come.
Disclaimer: This information is meant only as a general guide to the basics of Virginia domestic relations law. It is only for Virginia residents or those with a domestic relations legal problem in Virginia. It is not intended as a “do it yourself” guide. You could read this site all the way through and still not know enough to do your own divorce. There are some things that people can do themselves, but we believe a divorce case is simply not one of them. If you really want to do it yourself and we can’t talk you out of it, by all means go to the $49 forms website and knock yourself out. We’ll probably meet in a few weeks at the counter of the Clerk’s office with us filing another divorce decree for a judge’s approval, and you trying to coax a deputy clerk into explaining how you got your case all balled up.
Section I – The Basics of Virginia Domestic Relations Law
Here is the “five minute spiel” on Virginia domestic relations law that we usually give to clients at the first consultation. This is the stuff that everyone needs to know, so please don’t skip over it.
A. Grounds of divorce
This may sound like jumping the gun – especially if you aren’t considering getting a divorce yet – but you are, after all, either starting or contemplating starting out on a process that may end in a divorce, so you ought to have an idea of where the process will end. Therefore, let’s look at the principal grounds of divorce in Virginia:
- Adultery (and other extramarital sex acts).
Adultery, under Virginia law, is the act of sexual intercourse between a married person and someone other than that person’s spouse. The law also grants a ground of divorce for “sodomy” (oral sex and/or anal sex) or “buggery” (also anal sex and/or sexual intercourse with an animal) done outside the marriage. We rarely see a divorce granted on these grounds any more, although many divorces start out that way. The reason is that at some point in the proceedings the parties will have completed a year of living separate and apart, so they can switch over to the “no fault” ground of divorce (see discussion below) which is much easier and cheaper to prove. However, the issue still comes up, with distressing frequency, because it still is relevant to the issues of child custody, visitation, division of marital property, and, perhaps most importantly, spousal support.
Cruelty comes in two kinds: mental and physical. Physical cruelty is relatively easy: Pretty much any serious hurtful touching will do, although generally we have to prove more than one instance unless the one on which we rely is enough to land you in the hospital. Cruelty is cumulative, which means that it doesn’t matter that the couple reconciled and lived together for a substantial period of time between the first episode and the second. Mental cruelty is much more difficult. It’s not enough to show that your spouse is cross, difficult to live with, thin skinned, or even downright rude. To rise to the level of “mental cruelty” your spouse’s actions must be part of a scheme intended to make it unsafe for you to continue to live together. This is very difficult to prove. If you’re interested in what a good case of mental cruelty might look like, rent the 1940’s movie “Gaslight” with Charles Boyer and Ingrid Bergman. She plays a wife of fragile mental disposition. He plays her conniving husband who wants to drive her nuts. In one scene, for instance, they are about to go out on the town. Ingrid puts her purse down on the sofa and Charles sends her back upstairs to fetch something. While she’s out of the room he hides her purse. When she returns and they are going out the door he says “Darling, don’t forget your purse”, whereupon she goes to the sofa, where she knows she has left it, and (cue the spooky music) it’s not there! Now that’s mental cruelty! As with Adultery, Cruelty is relevant to issues of child custody, visitation, division of marital property, and spousal support.
Desertion is defined as the “unjustified breaking off of marital cohabitation, coupled with the intent that the desertion be permanent”. What that means in plain English is that if you leave home for good, you’d better have a good reason or else you may get accused of desertion. “Good reason” in this context pretty much boils down to “being chased out with a butcher knife”. However, it is a good defense to a charge of desertion that the spouse who stayed agreed that the spouse who left should go. If the misconduct of the other spouse is severe enough to compel you to leave, it could rise (or rather sink) to the level of “constructive desertion”. That means that your spouse made it so dangerous for you in the marital residence that, constructively speaking, your spouse deserted you by driving you out. As with Adultery and Cruelty, Desertion is relevant to issues of child custody, visitation, division of marital property, and spousal support. However, almost all Virginia divorces nowadays, even those that were filed on adultery, cruelty, or desertion grounds, eventually end up being granted on the fourth main ground of divorce, namely. . .
- Separation for More Than Six Months / One Year.
This is the so-called “uncontested” or “no-fault” divorce, because all you have to allege and prove is that you and your spouse have been separated for the required period of time (either six months or one year, depending on the situation) and that you intend the separation to be permanent. The standard uncontested ground is “separation for more than one year”. However, if you have no minor children, and if you have a signed agreement (often called a “separation agreement”, “property settlement agreement”, or “marital agreement”) that resolves all property and support issues, you can file if you’ve been separated for only six months. You can see why this is the way to go – there’s no need to hire private eyes, or assemble emergency room pictures, or round up witnesses to explain how or why one spouse left. You don’t need to accuse your spouse of anything bad at all. This is the simplest, cheapest, and least stressful of the grounds of divorce, and it’s the way we try to go if at all possible.
The children are really the starting point in determining what to do when a marriage is on the rocks. The questions concerning them are the first questions that must be answered. What good does it do to talk about who gets the house, for instance, before deciding who gets the children?
Therefore, the first question you will have to answer in your own case, no matter what your other circumstances may be, is “what do we do with the children?” Unfortunately, this question is the subject of more muddled thinking than any other subject in the vast realm of domestic relations! To help you clear your head before proceeding, here’s a thumbnail sketch of what the law says:
- Child Custody. The law in Virginia is remarkably even handed when it comes to determining who should have custody of the children. Although much is still left to the discretion of the trial judge, that discretion is guided by a list of about 13 different factors that have to be considered, the bottom line always being to determine the answer to the one great question: “What is in the best interest of the child?” Depending on the facts of each case, and the relative common sense or silliness of each of the parties, to answer this question can involve the expenditure of tens of thousands of dollars and the time and talent of a squad of well-meaning educated professionals: the lawyers on both sides, the child psychologists on both sides, the custody mediator, and the guardian ad litem for the child, to name only the principal players. In addition a whole host of witnesses may be brought in to say their piece: grandparents, siblings, uncles and aunts, friends of the family, school teachers, day care providers, nannies, parents of play friends, next door neighbors, significant others, private eyes, police officers, etc., etc., etc. How bad can this get? Trials of five days or longer are not unheard of. Getting back to the point – in deciding what is in the best interest of the child the court is guided by a list of factors. The court is decidedly not guided, or even strongly influenced, by the sex of the child or of the combatants. In other words, there is no longer in this Commonwealth a presumption in favor of either the mother or the father when it comes to custody of their child. Whichever party can provide a better life for the child (not necessarily materially speaking) will get custody every time. This is either good news or bad, depending on which side of the fence you are sitting on. The Court often engages in a search for which of the parents is the primary caretaker. In most parenting relationships, whether in marriage or out, the parents reach an arrangement about which one will be the primary caretaker. Sometimes it will be obvious – one spouse goes off to work and brings home a pay check, while the other foregoes work outside the home and raises the children. If a couple with that arrangement separates, the one who stayed home and raised the children will usually get custody, barring some serious misconduct. Of course, in Northern Virginia in the 21st century, parental roles are rarely so well defined. The basic rule is still valid, though: judges will always seek to learn what the agreed parenting relationship was between the parties before the relationship broke down, and will try to build a custody and visitation regime around those ideas. Here are the statutory custody factors, straight from the Virginia Code:
- The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
- The age and physical and mental condition of each parent;
- The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
- The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
- The role which each parent has played and will play in the future, in the upbringing and care of the child;
- The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
- The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
- The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
- Any history of family abuse or sexual abuse; and
- Such other factors as the court deems necessary and proper to the determination.
Legal vs. Physical and Joint vs. Sole Custody. Virginia law provides for two types of custody – legal custody and physical custody. Legal custody can be either joint or sole. Physical custody can be shared, primary, or sole. While practically speaking the factors that cause a judge to choose a certain type of legal custody will also influence the judge’s choice of physical custody (and vice versa), technically you can have either type of legal custody with any of the types of physical custody. So what do they all mean:
- Sole legal custody is a custodial arrangement where one parent retains primary responsibility for the care of the child and makes all major decisions regarding the care of the child – without the need for input from the other parent – with the only exception being emergencies while the child is with the other parent.
- Joint legal custody is a custodial arrangement where both parents must consult with the other and have input into all major decisions regarding the care of the child. In some cases, a court will award joint legal custody but give one parent the “final decision-making authority” where that parent gets to make the decision if the parents have honestly discussed the matter but been unable to reach an agreement. Where no such authority is granted, however, for major decisions, the parents either have to agree or submit the question to the court.
- Shared physical custody (sometimes called joint physical custody) is where the child resides with both parents for a substantial period of time – this arrangement is sometimes also called 50/50 custody (where each parent has the child for 50% of the time), or close to it.
- Primary physical custody is where the child generally resides with one parent, but the other parent has defined visitation periods (sometimes called “parenting time”) where the child stays with that parent.
- Sole physical custody means that the child exclusively resides with one parent and either has no contact with the other parent, or the visitation with the other parent is limited to being under supervision, or short periods of time with no overnight stays.
- Any combination of legal and physical custody is allowed if the judge finds that combination to be in the child’s best interest.
- Child Support.
The federal government has weighed in rather heavily in this area of the law since the early 1980’s or so, reacting to the distressing spectacle of non-custodial parents refusing to adequately support their children, leaving the task to the public welfare system and, ultimately, to us taxpayers. Therefore, as required by federal law, the General Assembly has heavily limited the discretion of trial judges when setting child support, and instead requires most cases to be based on statutory guidelines – which look for all the world like one of the tax tables put out by the IRS. Even this determination is subject to a bunch of variables and factors too numerous to set forth here, but the basic inclination of Virginia trial judges, who have virtually all now spent their entire judicial careers with the guidelines in place, is that whatever the guidelines say is what will be ordered, absent really unusual circumstances. The table is only part of the story when it comes to determining child support, though. The real battle lies in choosing the right Guidelines Worksheet, and figuring out what numbers get plugged into it. There’s a worksheet for almost every conceivable combination of children and custodial circumstances:
- The Sole Custody Worksheet, where one parent has custody of the child and the other parent has visitation for no more than 90 days a year.
- The Shared Custody Worksheet, for those families where custody of the child or children is “shared”. The General Assembly defines “shared custody” as any situation in which both parents have the child for more than 90 days a year. You can imagine what a fertile ground for us lawyers this has become – entire cases have turned on answering the question of “what counts as a ‘day’?”
- The Split Custody Worksheet, for situations where one parent has custody of one child and the other has custody of the other child.
- More recently, the General Assembly has also allowed for a combination of the above worksheets to be used when there are complicated child care arrangements (for example, the parties have two children, they share custody of one child, but one parent has sole custody of the other child) – which can add another layer of complication.
To complicate matters further, the amount of support to be awarded, on any of the worksheets, is increased by the amount of work-related day care costs, and the amount of the child’s share of the cost of medical insurance. Also, if either party supports children from another marriage or relationship, either by paying child support or having custody of that child, that fact gets into the mix as well.
Even when the court determines the guidelines amount, it then may be influenced by a string of factors that may increase or decrease the amount of the award. Such factors include whether a party is voluntarily unemployed or under-employed, whether a party has unusually low living costs due to sharing expenses with a housemate or living with parents, any special needs or considerations of the children, the cost of supporting other dependents, and the list goes on and on. Nonetheless, while the Code allows courts to deviate from the guidelines for this reason, the overwhelming majority of child support orders are ultimately set with the guidelines without deviation.
The portion of the Virginia Code that deals with the determination of and division of marital property is as long as the portions dealing with grounds of divorce, child custody, and child support combined! However, the work of the trial judge in every case boils down to answering two questions: “What is the marital property?” and “What percent of it goes to each party?”
- Marital v. Separate.
The first question is to determine what assets make up the marital property, because it is only this property that is subject to being divided. Think of how a poker table looks at the start of a hand. The judge has to decide what chips get put in the pot in the middle of the table. Each chip represents a piece of marital property. Only marital property gets put on the table. Separate property doesn’t get on the table, and thus doesn’t get divided. The only exception to this rule is in the case of “part marital – part separate property,” which will be discussed below.
- Marital Property is, as a general rule, all property that is acquired with money that is earned by either party during the marriage and all property that is created by either party during the marriage, whether the property is titled in joint names, sole names, or jointly with another party. “During the marriage,” by the way, in this context, means between the date of marriage and the date of your last separation.
- Separate Property is everything else. It includes any property that either party brings into the marriage, any property that is acquired by either party during the marriage by inheritance or by gift from someone other than the other party to the marriage, and any property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that the new property is maintained as separate property.
- Part Marital – Part Separate.
While this may all sound very simple, you’re probably already thinking of issues. Like what if I bought a house before the marriage, but paid the mortgage with money I earned during the marriage? Or what if my husband bought a house before the marriage but I personally renovated the kitchen? Well, this is why we also have part-marital/part-separate property (sometimes called “hybrid property”). Here’s what the Virginia Code has to say:
- When income is received from separate property during the marriage (say you owned a townhouse before the marriage, which you kept in your own name after the wedding, but you rented it out and bought a home titled jointly with your spouse): That rental income is also separate property, so you don’t have to share it with your spouse in the event of a divorce. The only exception to this rule is where the income is attributable to the personal efforts of either party (for instance, if either you or your spouse did substantial work finding new tenants).
- When separate property increases in value during the marriage (imagine the same townhouse as in the previous paragraph, that is worth more now than on the date of your wedding) The same rule applies: that increase in value is also separate property, so you don’t have to share it with your spouse in the event of a divorce. The only exception to this rule is where the increase in value is attributable to the personal efforts of either party during the marriage (for instance, where you add on a deck during the marriage), or where marital property is used (for instance, where you reduce the mortgage balance by regular mortgage payments made from money earned during the marriage). One more thing — the law says that any such personal efforts must be “significant and result in substantial appreciation of the separate property.”
- When separate property is commingled with marital property, resulting in the loss of identity of the contributed property (imagine the same townhouse, but sometime after the marriage you sold it and used the proceeds to put the down payment on a new house, which you now own jointly with your spouse): The separate property is transmuted into marital property. However, that doesn’t necessarily mean you have to share the value of the separate property: if you can retrace the separate property (i.e., by showing the settlement documents) then you get the value of the separate property back before the marital part is divided. The same rule applies the other way, if marital property is used to buy property after the parties separate.
- When separate property is retitled in the joint names of the parties (same townhouse, only this time, a year or two into your marriage, you refinance the mortgage to get a lower rate, and you decide to retitle the property in joint names with your spouse): The same rule applies as in the previous paragraph: you have transmuted the separate property into marital property. However, as in the previous paragraph, to the extent you can retrace the separate property, it continues to be separate property, unless the other party shows that you intended the change in title to be a gift of your separate property into the marital estate.
- Valuation Dates. Once we’ve put all the marital (and the marital portion of the “part marital, part separate”) property on the table, our next problem involves determining how much each asset is worth. Of course, since no asset remains static in value, the real question is the date of our valuation of the asset. The Virginia Code gives the trial judge a simple default date: the date of the hearing at which the property is divided, called the “equitable distribution hearing”. Typically, in Fairfax County, this is the last substantive hearing in the case, after the hearings on child custody.That hearing may not occur until more than a year after the case was filed. In the meantime, a home that was worth $400,000 on the date of the parties’ separation may have grown in value to $500,000 by the time of the equitable distribution hearing, and the party who stayed in the house, paid the mortgage and utilities, mowed the grass, washed the windows, etc., wouldn’t think it fair to put that extra $100,000 in value on the table to be divided. Therefore, if we think another date is more equitable, we can ask the judge to value a particular asset as of that date. According to the Virginia Code, the judge may allow that alternate date for good cause shown, in order to attain the ends of justice. Unfortunately, “good cause” and “attain the ends of justice” means something more than just showing you will lose a ton of money by using the date of the final hearing. Judges usually just go ahead and value everything as of the date of the hearing (think of it from the judges’ perspective — there’s no way they can get reversed on appeal if they follow the statute!) and then give one party more than half of the current value of the asset if they are persuaded that such a result is equitable. Typically, an alternative valuation date is only allowed when a party has “wasted” marital property since around or after the separation – such as by spending marital money on a wild bender in Las Vegas (note that things like living expenses, attorneys’ fees, daycare, etc. are usually not considered waste, even if you have separate assets available from which you could pay for the same thing).
- Pensions, etc. Ordinarily the job of the judge at the equitable distribution hearing is to divide up the marital property by entering an order which awards each individual marital asset to one of the parties, or requires an asset to be sold and the proceeds divided so much to one party and so much to the other. There’s a special rule for pensions, profit-sharing or deferred compensation plans and other retirement plans (referred to from now on as “pensions” for convenience) that by their nature can’t be divided now. First, the judge has to determine the marital share of each pension. According to the Virginia Code, “marital share” means that portion of each pension check that you earned during the marriage and before the last separation of the parties. For instance, let’s say you worked for your employer for five years before the marriage, for ten years from the date of the wedding to the date of your last separation, and for another five years thereafter until you retire. Then you start to receive a pension check each month of $2,000. The marital share of each check is half, since you were married and living with your spouse ten out of your total twenty years of service.Then, the judge orders the administrator of the pension plan to pay the other party’s portion of the marital share to that party. By Virginia law, that can’t be more than half of the marital share, so taking the same facts as in the previous paragraph, your by-then ex spouse’s share of each pension check can’t exceed $500. Also by Virginia law, the court can only direct that payment be made as such benefits are payable. That means that no payments will begin until the party owning the pension chooses to (or has to) begin receiving the monthly benefits. Therefore, although a pension may be a significant marital asset, it’s one that may not be divided for decades. In the case of private pensions, there’s always a chance that the pension won’t be there at all when the party owning it retires. For this reason we very often advise clients who are not the owners of the pension at issue to pay a pension valuation expert to determine the present value of the marital share of the pension, and then to take half that amount now, rather than wait for their spouse to retire. This can be done by giving our client more of some other asset on the table, or by the party owning the pension taking out a loan secured by the pension. If you are the non-owning party and are willing to wait on your spouse to retire to claim your share of the marital share of your ex’s pension, we will usually advise you to insist on being named as a survivor beneficiary, so that if your ex dies first you will still get your share of the marital share of each pension check. The Virginia Code allows this. It says:“To the extent permitted by federal or other applicable law, the court may order a party to designate a spouse or former spouse as irrevocable beneficiary during the lifetime of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy. The court, in its discretion, shall determine as between the parties, who shall bear the costs of maintaining such plan.” If this is not possible, the last resort is for the non-owning party to purchase a policy of life insurance on the owning party’s life. When pension division is an issue, you may hear the lawyers talk about needing a “quad-row”. Actually, we’re saying “QDRO”, which is short for “Qualified Domestic Relations Order”. This is an order which is required by federal law to be signed by the judge after the Final Divorce Decree is signed. It is directed to the pension administrator and tells the administrator exactly how much (or what percentage) to take out of the spouse’s pension. If there’s no QDRO, there will be no split of the pension. Careful lawyers (and we are very careful!) make it a rule to always have the QDRO ready for submission to the judge at or around the same time the Final Decree is submitted, because otherwise the owning spouse may be tempted to take his or her pension out in a lump sum, just to frustrate the non-owning spouse’s rights. There have been some real horror stories reported in the legal journals about this sort of thing, and we want to make sure it doesn’t happen to any of our clients.
D. Spousal Support. First of all, another definition: “Spousal support” is the modern term for what used to be called “alimony”. The reason for the new term is to make it clear that, under Virginia law, support can go from the wife to the husband (under the proper circumstances) just as it can from the husband to the wife. “Alimony” is a legal term specifically for support payments from husband to wife, so it had to go. Someone thought of “spousal support” because that means “support of a spouse” much like “child support” means “support of a child.”
- When is Spousal Support Awarded? Basically, whenever one spouse has, for a significant amount of time, depended on the other spouse for support, whether fully or partially. While two people are married, each has a legal duty of support to the other, so that if one gets sick the other must support the household until the sick spouse can return to work. That support obligation is not broken just because the parties separate. Therefore, whenever there is a significant disparity between the incomes of the parties, and it can be shown that one spouse has become dependent on the other, the one with the lower income should be looking to receive at least something for spousal support, at least for some time.
- How much spousal support is typically awarded? There is no such thing as a “typical” award of spousal support, because there is no area of domestic relations law that is left more up to the discretion of the trial judge. Unlike child support, there is no table and no guidelines worksheet. As you probably have guessed, however, there are statutory spousal support factors for the judge to consider, and here they are:
- The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and physical and mental condition of the parties and any special circumstances of the family;
- The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
- The contributions, monetary and non-monetary, of each party to the well-being of the family;
- The property interests of the parties, both real and personal, tangible and intangible;
- The provisions made with regard to the marital property under § 20-107.3 (the equitable division Code section);
- The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
- The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
- The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
- The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
- Such other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.
We know it sounds like a cliché, but the only binding direction to the trial judge from the Virginia Supreme Court or the General Assembly is that the amount of spousal support should be an amount sufficient to maintain the dependent spouse in the manner to which she (or he) became accustomed during the marriage, subject, however, to the dependent spouse’s ability to earn and the supporting spouse’s ability to pay.
In Fairfax County, the Bar Association, in cooperation with the local judges, published a formula for use in temporary support hearings, which are hearings that are held shortly after the commencement of a divorce case to determine the amount of support to be awarded from then until the entry of the final divorce decree (which typically happens after the equitable distribution hearing). The formula became so popular that the General Assembly ultimately adopted and mandated its use statewide – but again, that formula is only for temporary (sometimes called “pendente lite”) support hearings. That formula fixes the amount of temporary spousal support at 27% of the payor (i.e., the supporting) spouse’s gross income from all sources, reduced by 50% of the payee (i.e., the dependent) spouse’s gross income from all sources. Thus, if the payor spouse has a gross income (i.e., income before taxes or any other deductions) of, say, $6,000 per month, then temporary spousal support would be $1,620 per month. But, if the payee spouse grosses, say, $2,000 per month, that results in a reduction of $1,000 per month, and the bottom line is temporary spousal support of only $620 per month. Note that if the parties have minor children, then it becomes 26% of the payer’s income less 58% of the payee’s income.
It must again be emphasized that these guidelines are only for temporary spousal support, and they have no applicability at the final hearing, when permanent spousal support is to be determined. The best way of determining the amount of spousal support is for the dependent spouse to work out a monthly budget of income and expenses (not forgetting to include an average monthly amount for expenses, such as water/sewer and auto insurance, that typically are paid every three or even six months). The amount of spousal support should be an amount sufficient to make up the shortfall between what the dependent spouse makes and what the budget shows the dependent spouse needs, assuming the paying spouse is able to pay.
- Spousal support can be drastically reduced or even barred. First, before the judge considers the above-mentioned statutory factors, the judge is required to consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery, cruelty or desertion. This is why we said, way back in the section on grounds of divorce, that adultery, cruelty and desertion are still important issues. Also, the Virginia Code says:“[N]o permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor a ground of divorce [of adultery].” As you can see, not only is adultery still an important issue, it can be an “a-bomb” dropped on your hopes for spousal support. If you are the one seeking spousal support, and you have committed adultery, then your spouse will seek to bar you from receiving spousal support on the basis of this law. Your spouse doesn’t have to get the divorce from you on that ground, he/she merely has to show that “there exists in [his/her] favor” that ground of divorce. Here’s the only exception provided in the law: “However, the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.”
- How long does the spousal support last? That depends. It used to be that spousal support was always forever – until the death of one of the parties or the remarriage of the dependent spouse. Beginning a couple decades ago, however, judges began to be more resistant to awarding spousal support on a permanent basis. As a result, the General Assembly gave judges a powerful new tool popularly called “defined duration spousal support.” According to the Virginia Code: “The court, in its discretion, may decree that maintenance and support of a spouse be made in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof.” The point of defined duration spousal support is to award support to the dependent spouse for a length of time sufficient to allow the dependent spouse to go back to school and get the training necessary to qualify for a good job in a reasonable amount of time.
- When spousal support ends. By statute, spousal support ends when the supporting spouse dies. It also ends when the dependent spouse dies, remarries, or cohabits with another person in a situation analogous to a marriage for a period of more than 12 months. It also, of course, ends when the period of defined duration support expires.
- Reservation of spousal support. Let’s say you are entitled to spousal support (i.e., you haven’t committed adultery) but you can’t show a need for it right now. The law allows the judge to grant you a reservation of spousal support. The reservation means that, if circumstances change in the future to the point that you can show a need, you have the right to try to convince the judge that spousal support should be awarded. This reservation doesn’t last forever. By Virginia law: “In any case in which the right to support is so reserved, there shall be a rebuttable presumption that the reservation will continue for a period equal to 50 percent of the length of time between the date of the marriage and the date of separation. Once granted, the duration of such a reservation shall not be subject to modification.” Also, the reservation ends if one of the terminating events set forth in the “When spousal support ends” paragraph above happens.
Section II – If You Haven’t Yet Separated
First, a word about marriage counseling. It’s like the Reader’s Digest column of many years ago: “Can this marriage be saved?” We firmly believe that people often decide to separate for the wrong reasons, or sometimes for no reason at all. So, if you are thinking of separating from your spouse, take a moment (heck, take two moments) to contemplate what you are thinking of doing. After all, you once loved this person enough to get married. Could you have been so wrong back then?
What about the fact that you (assuming you had a traditional wedding) exchanged vows to keep this marriage going “until death do us part?” That oath should mean as much to you now as it did the moment after you uttered it, however long ago that might have been. To us, it’s not enough that your spouse has gotten fat, or lost his or her teeth, or picks his or her toenails in bed, or has become addicted to the Internet. It’s up to you to try your best to fix things, and to take advantage of the dozens of resources out there in an all-out effort to save your marriage.
There are professional marriage counselors, marriage encounter weekends, church activities, and all sorts of programs staffed with dozens of earnest social sciences types who would like nothing better than to help you and your spouse regain what it was that attracted you to each other in the first place.
You did not get into this marriage casually, and you should not try to get out of it casually.
I’ve already gone through marriage counseling, and it just didn’t work. I can’t stand my spouse and I want to get out of this marriage! Now what’s your best advice?
Thankfully, under Virginia law, you are not required to continue to live with your spouse against your will. You are free to leave at any time, for any reason or none at all.
That sounds too good to be true.
It may very well be. In reality, the only time you are really “free” to leave a marriage is where there is no marital property to be divided, no chance of your spouse asking for spousal support, no chance of your needing spousal support, and there are no children at issue.
OK, what if we do have children?
If you do, then you have to ask yourself “With whom would the children be better off?” If you plan to leave, you almost always have to answer that question with the name of your spouse, if for no other reason than the fact that the children will be able to continue to reside in the home they have grown used to, surrounded by their familiar neighborhood and all their friends, and close to their accustomed schools.
If, after considering all these factors, you can still honestly answer the question that the children would be better off with you, then you’d better take them with you because there is, practically speaking, no way you are going to convince a judge to give them to you after a hearing as much as a year later.
Before you even consider such a drastic step, however, you must have a long talk with an attorney. If you do this the wrong way you could get charged with parental kidnapping, which is a serious crime, or your spouse could obtain emergency custody and you may not even be able to see your children for months while you get it resolved.
My wife says I have to leave – do I have to?
In a word, no. It never ceases to amaze us, the number of clients who come to us saying their spouse “threw me out”. If we do nothing else with this web site, we hope to dispel the notion that either spouse has the right to open the door, point their finger out and say “Get out and stay out” and have it carry any force of law. If you and your spouse have established a marital domicile, neither of you has the right to order the other to leave.
Even if the house is in her name?
Even then. This is a common scenario where one party owns a home prior to the marriage and the other party moves in after the wedding. The house is the separate property of the spouse in whose name it is titled (but then you already know this because you just finished reading the section on marital property) but that fact alone doesn’t give the owner spouse the right to kick the non-owner spouse out. To be clear – your spouse might be able to go through the legal eviction process and get you out that way, but until the Sheriff shows up at your door to escort you off the property after the full legal eviction process is complete, your spouse has no right to take matters into his or her own hands.
Even if we can’t get along, and fight all the time?
Well now, wait a minute – when you say “fight all the time”, that isn’t by any chance a polite way of saying you smack her around a little on Saturday nights, is it? Because if it is, you have just hit the exception to the rule: practically speaking, the only way one spouse can have the other spouse forcibly removed from and barred from re-entering the marital domicile in a rapid manner is to convince a judge that the petitioning spouse has a well-founded fear of physical harm at the hands of the other spouse. To make this exception work one spouse has to show up at the door of the local Juvenile & Domestic Relations District Court and convince an intake worker and then a judge that (a) this spouse has been the victim of an assault by his or her spouse in the recent past, and (b) has a darn good reason to believe that he or she will be the victim of another assault in the very near future unless the offending spouse is removed from the house pronto. Even then, once this order, which is called a preliminary protective order, is entered, the offending spouse can only be removed from the marital residence for 15 days, within which time there has to be a full hearing at which time that spouse will have a chance to persuade the judge that he or she should be allowed back in.
My husband says he’s going to leave next weekend. I don’t want a divorce. Isn’t there anything I can do to prevent this?
In a word, “no”. Under Virginia law it doesn’t matter if you don’t want the divorce, as long as your spouse does. There is also no law that compels a spouse to live with the other spouse against his or her will – that would violate the Constitution. That being said, you can talk to your spouse about what our website had to say earlier about “desertion” and the harm it could cause to him – this might at least give him pause to try to work things out first.
My wife and I have decided to separate and that I should be the one to leave, but I’m concerned about what you said about Desertion. Is there anything I can do before I go to protect myself?
Yes there is. In fact, there are several things you can and should do:
- Tell your spouse your plans well in advance. Domestic relations is a lot like diplomacy between nuclear super powers. Before the U.S. sends up an atmospheric research missile over Greenland we make sure the Russian air defense people are notified in writing several days in advance, so they aren’t startled by the sudden appearance of one of our missiles on their radar screens. By the same token, you really don’t want your spouse to return home from work one day to find the front door swinging on its hinges and all the furniture moved out.
- Make a list of what you will be taking with you (or for which you will return at a later time) and get your spouse to sign it. If possible, take pictures to show what the property looked like when you left.
- Ask us to prepare an “Agreement to Separate” that will make it clear you are leaving with your spouse’s consent.
- If children are involved, for goodness sake talk about what’s in the best interests of the children. Don’t just snatch the children, because a judge will very likely just snatch them right back.
My husband and I want to separate, but we can’t afford to maintain two separate households. If he moves into the den, can we still qualify for one year separation?
Usually one of you has to actually move out to get the one-year (or six month) clock running. However, you can still get the divorce even while living under the same roof, but only if your house is big enough so that you and your spouse can actually live there while not having much of anything to do with each other (not just having sex, but also refraining from doing all the other things that spouses normally do for each other, such as washing each other’s clothes, shopping for each other’s food, preparing meals together, eating meals together, keeping a joint checkbook, etc.).
Still, it’s difficult to prove, because judges are naturally skeptical that a husband and wife could be separated while still living under the same roof. If you must do it this way, be sure to see us so that we can plan it successfully.
When are you going to tell us about those Separation Agreements?
We were just getting to that! A Separation Agreement (or property settlement agreement, or marital settlement agreement, or custody and property settlement agreement – the terms mean the same thing) is an agreement between two spouses as to the important issues concerning the marriage – child custody, visitation and support, spousal support, division of marital real and personal property, pensions, taxes, joint debts, attorney’s fees, in short everything that needs to be decided in order to arrive at an equitable breakup of the relationship. We realize you probably have a friend or family member who just went through a separation or divorce and is willing to let you copy his or her agreement, but please, please, don’t attempt to draft such an agreement by yourself. These things run longer than four pages even in the simplest cases and agreements of 20 pages, 30 pages, or longer aren’t uncommon. It is absolutely necessary that you employ an experienced attorney to draft it. Otherwise you will be tempting fate, and the chances are you will end up with an agreement that either doesn’t resolve all the possible eventualities, or isn’t clear as to an essential provision, or leaves an important concept out altogether. No matter what others may say, there is no such thing as a “standard” agreement. We’ve probably drafted thousands, and none of us has been able to do one yet that was exactly like any other that we’d done.
One of our first tasks will be to prepare a draft agreement. When we are done we will have an agreement that is fair and that you will be able to sign. You can then either give it yourself to your spouse, or we can mail it to them along with a nice cover letter. Then, your spouse can either review it themselves or get an attorney. In either case we open negotiations and try very hard to reach an agreement as to terms quickly. Speed is essential because whatever era of relative good feeling exists currently will surely, in time, fade. Our goal is to have an agreement signed and in place long before that time rolls around.
My best friend used a Mediator – could mediation right for us?
It certainly could be and it may very well be worth a try. Divorce mediation involves the spouses and their attorneys coming before a neutral party (usually a domestic relations attorney with a lot of experience or a retired judge) who listens to both sides and attempts to act as a catalyst to facilitate talks between the parties.
Mediation is voluntary, and the mediator never makes a ruling on any point. Either party can always walk away if they don’t like the way the talks are going. Still, mediators can use their experience to show parties how they are being unreasonable and can suggest alternatives to broker a deal, so they can be very valuable.
Still some mediators seem to take the view that it is essential to separate the parties from their respective attorneys as a pre-requisite to starting the negotiations. It’s as if some mediators view the attorneys as obstacles to achieving a settlement, rather than as facilitators. Whenever one of our clients goes to mediation we always go with him or her. Otherwise, what are we there for? With all due respect, most of our clients wouldn’t know what a fair deal looks like if it crawled into their ear and gave birth to a litter of little fair deals! The reason is not because our clients are dense — it’s because they just don’t know the law, and they just don’t know how judges in this area interpret the law.
By the way, since the attorneys should go along on the mediation sessions, this means that mediation is definitely not a way of saving money. For this reason we feel that mediation should be used as a way of facilitating negotiations that have stalled even after the attorneys have tried for some time to broker a deal. We are generally not in favor of going to mediation as a first step.
Section III – If You’ve Already Separated
Try, try again to reconcile. Just because you have separated doesn’t mean you have to stay that way, or that you have to get a divorce. Consider this to be a “trial separation”, and do what you can (within reason) to get back together. Attend counseling sessions. Go to couples weekends at your church. Use the dozens of organizations out there who would love nothing more than to help you and your spouse get over whatever it is that has torn you apart. Keep in mind what we said at the beginning of section II: you once loved this person enough to vow to spend the rest of your life with him or her. Sure, you know a lot more about this person now than you did then, but isn’t it possible that you were right then and wrong now? Of course none of this applies if the issue is one of abuse and safety – if you no longer feel safe with your spouse, forcing yourself to try to reconcile could be disastrous.
Now, as long as you stay separated for more than a year you can file for the divorce on the “no fault” ground (see section I). If you have no minor children and you and your spouse have both signed a Separation Agreement you can file for the divorce after a separation period of only 6 months.
Ordinarily we will not file any papers in the Courthouse until you have the six month or 1 year separation period under your belt. This is because in the usual case people just don’t need the intervention of the court system before that time, and we don’t want to waste our time or your money.
However, there are times when you should contact us during this period. In addition to if you are still trying to negotiate a separation agreement, you also should contact us right away if your spouse is refusing to pay child support, or becoming nasty about the children in any way, or refusing to do something you really need done (such as paying their share of joint bills, or breaking into the house after they’ve gone, or stealing property, or refusing to sign important papers, etc.). When in doubt, please don’t hesitate to call us.
When is the right time to start negotiating a Separation Agreement?
Right now. There literally is no time like the present, because right now (if you are like the vast majority of cases) both you and your spouse are probably of a mind to get this relationship behind you. Neither of you wants to take advantage of the other, you just want what’s fair and to get on with your lives. The problem is that this time period will not last, and sooner or later (if you don’t get back together) one or both of you will end up either wanting more than you originally said you would take, or refusing to do what you said you would do. We view our job as utilizing this era of good feelings to your advantage to push through an agreement that is fair, that you can rely on to safeguard your rights, and that will stand up when, inevitably, somebody does something bad.
Does my wife need to have an attorney, or can you represent both of us?
Your spouse may have an attorney or not, as he or she chooses. We will make it clear to them, however, both verbally and in writing, that we are your attorney only, that our task is to safeguard your rights, and that we therefore are not impartial. An attorney is strictly forbidden from representing both parties to a divorce – even if you both agree on everything.
My husband says you don’t know what you’re talking about, and I don’t stand a chance.
Probably one of the hardest things about separation is realizing that the person you loved enough to marry may no longer be worthy of your trust, and, even worse, may start downright lying to you in order to get their way. In the more than 40 years our firm has been handling these matters, we’ve found, as a general rule, when clients follow our advice they almost always do just fine. Therefore, when somebody tells our client that we’re giving them bad advice we understandably get a little hot under the collar and begin to suspect the motives of the one who made the allegation.
You have to realize that the same person you loved enough to marry, and upon whom you have depended for lo these many years, is now your adversary and has a motive to lie to you to get you to do things you shouldn’t do, or to refrain from doing things you should do.
The next time your spouse tells you we don’t know what we’re talking about, or their attorney says different, or we’re giving you bad advice, please call us to discuss it. We’ll explain to you how we’re right or we’ll admit we’re wrong – we are never afraid to admit it if we’ve made a mistake, and we will not compound errors by trying to pretend we’d said or done something different than we actually did.
If it helps, think of your spouse as temporarily insane, because we are convinced that the stresses of separation do indeed drive most people at least a little batty. If you accept the fact that your spouse is not in their right mind it will make it easier to grapple with the concept that they could lie to you or take advantage of you.
Do we have to register our separation at the Courthouse to make our separation legal?
No. In some states you do, but in Virginia you don’t. In Virginia any separation is “legal”.
What kind of things should we put in the Separation Agreement?
When you say “we”, we hope you mean “you and me”, not “my spouse and me”. Drafting a separation agreement is a lengthy, painstaking process that simply cannot be done well if done quickly, and absolutely must be done with the help of a lawyer.
Separation agreements come in all kinds and lengths, and there is no such thing as a “standard” one. Every case is, after all, unique. However, each separation agreement usually will have a paragraph dealing with each of these topics: a Non-interference clause that says that neither of you can harass the other, a Child Custody clause, a Child Support clause, a Spousal Support clause, a clause concerning how to make Adjustments in Support, a clause concerning Property Division, a clause concerning division of Pensions, 401(k)s, Military Retirement, and the Like, a clause about how to pay Joint Debts, one about all the various issues surrounding Taxes, a clause about what to do if you have a Reconciliation (don’t laugh, it happens frequently!), a very important clause about How to Change the Agreement Once it’s Signed, an equally important one about What to do When Someone Violates the Agreement, and about half a dozen more clauses at the end which are technically known as The Fine Print.
Very often separation agreements will go through a number of drafts before all the clauses are the way the parties want.
Once we get the Separation Agreement signed, can we change it?
Yes, and sooner or later you probably will need to change it, simply because your situation will change over time. You are best off by calling us to prepare an Addendum. This is most important concerning the monetary issues, especially the payment of support, because the rules in Virginia are very strict on this subject. The golden rule for all changes in a separation agreement is Get it in Writing and Signed by Both Parties! If you don’t sooner or later your spouse will forget about that little verbal agreement you both made, and it may end up costing you big money.
For example: let’s say the separation agreement requires you to pay $500 per month in child support to your spouse. Let’s say that she calls you up one day and says “Jenny just got accepted for ballet school, but they need a $1,500 tuition deposit by next week and I only have $500. Can you help?” Now you know that Jenny lives for ballet and would be crushed if she couldn’t go to ballet school so of course you say “okay” and you start writing a check. Somewhere in the back of your mind, though, is a little voice shouting “Get it in Writing and Signed by Both Parties!” You ignore the voice and write the check to the ballet school. A month later you get a call from your spouse’s lawyer, who wants to know when she can expect the monthly child support check, which is now a week late. You protest, saying “Hey – I’m two months to the good!” Unfortunately, you didn’t get it in writing, so under Virginia law you have just made a gift to Jenny of the tuition for the ballet school because it wasn’t paid in accordance with the agreement (i.e., wasn’t paid to your spouse), and you still have to write a check for the child support!
“Okay”, you say, “what if I wrote the check to my spouse instead?” Same result, since Virginia law treats any amount you give your spouse over and above the amount of support due for that month (including arrearages) as a gift to the extent of the excess amount.
“Okay, okay” you say, “what if I get her to sign a piece of paper that says I get to take a two month vacation from support if I front the money for the ballet school?” Now you’re catching on! Assuming your agreement hasn’t been incorporated into an order of court, you have just made a valid addendum to the agreement, and you don’t have to pay the child support for those two months. However, if your agreement has been incorporated into a court order you need to get the court’s permission as well, which means preparing an agreed order to be shown to a judge.
What if my wife refuses to abide by the Separation Agreement?
You have a choice of remedies, depending on the stage of your separation and/or divorce and the provision that your spouse has disobeyed. First, please understand that a Separation Agreement is a binding contract, just as if it was a contract to purchase a car. By signing the agreement both parties bind themselves to obeying each and every substantive portion, not just the portions they feel like obeying. Therefore, your first remedy is a lawsuit. This works okay if your spouse has disobeyed a monetary provision of the agreement, but if she has disobeyed a non-monetary provision (like, for instance, the provision that says that she agrees not to criticize you or your family in front of the children, or the provision that says she will allow you to make one phone call a day to the child, or so on) you can’t really sue for damages because you haven’t really suffered a loss that can be expressed in money. So, your second remedy is to file a petition for contempt with the court, by which your spouse is brought before the court and, if your spouse can’t give a good reason for violating the terms of the agreement, the court can impose a penalty, which can include a fine, reimbursement for your monetary damages, attorney’s fees, and even a jail sentence suspended on condition your spouse doesn’t do it again! This is a powerful tool indeed, but it necessarily assumes that you have a case pending in the court, or have a final decree. If you don’t have a case pending in a court I may advise you to let me go ahead and file one, just so the agreement can be incorporated into the terms of a court order, so that then we can file the petition for contempt.
What if my husband fails to pay the agreed amount for support?
This is probably the most frequently asked question I get about separation agreements. The answer is the same as in the previous paragraph. This is one of the occasions that I wouldn’t hesitate to get a petition on file in a court, so that the contempt power of the court can be invoked. In addition I can file for an Income Deduction Order, which is nothing more than a wage garnishment, as long as I know where he works. Finding this information out is getting easier all the time on the internet.
My wife calls me 10 times a day and parks her car in my condo parking lot. What can I do?
If you have a separation agreement, she’s violating it and the above paragraphs apply. Even if you don’t have such an agreement, I can file a petition in the local court to be free from harassment, both in person, over the phone, whatever. Her behavior may also constitute stalking, which, in extreme cases, may constitute a criminal violation, so you could make a complaint to your local magistrate.
My husband says he’s still my husband and he has the right to have sex with me whenever he wants. Is he right?
No, but it’s surprising in this day and age how many wives assume this is true. What you are describing is called marital rape, and it is every bit as criminal as any other form of rape. It’s worth noting that even before Virginia criminalized marital rape (something that sadly only happened within the past several decades), marital rape was still illegal if done during a separation – so the answer to this question has not been yes for a very long time.
My wife is trying to turn the children against me. What can I do?
That depends on what she is saying or doing. You can counter false statements or impressions by telling the children the truth (with your presentation, of course, depending on their ages and maturity). This is a great area for the mediators, because they are very good at showing each party the tremendous damage that this sort of thing does to the children.
Is it okay if I “see” another person during my separation?
Of course – otherwise you’d bump into them!
I mean “see another person” as in “see another person naked in bed next to me”.
Oh. . . The answer to that one is, as you might imagine, very complicated. Let’s consider all the possibilities:
(a) No child custody to lose, no visitation to be restricted, no marital property to lose, no marital debts to have to pay more than your share of, no need for spousal support, nothing to lose if your spouse gets vindictive and goes public with the allegations, and no chance of reconciliation: Go for it! You’re untouchable! Knock yourself out! It doesn’t matter whether you get involved in an adulterous affair because you’ve got nothing to lose if you get caught.
(b) Everybody else: Sex with someone other than your spouse while you are separated but not yet divorced is still adultery. If you get caught you may well lose something of value to you – you may lose custody of your children, or you may have your visitation restricted. You may have to hand over more than a fair share of marital property. You may lose your right to spousal support or have to pay more spousal support than you would have liked. You may have to pay more than your fair share of the marital debts (especially if your spouse can prove that you squandered marital funds on your girlfriend or boyfriend). You may have to endure it while allegations of your extra-marital sex life are aired in public, because a divorce proceeding in Virginia is a public proceeding and you can’t count on the judge imposing a gag order on the parties, so if your details are especially titillating you (and your children and friends and co-workers and boss and clients and customers and pastor) may find your picture on page 1 of the local paper.
What’s the answer? Keep it zipped! Exercise a little self control! You’re an adult, after all, so act like it! There, now that we’ve gotten that off our chest, we can get real again, because we realize that, if you’ve fallen in lust with someone else, nothing we or any other lawyer can say or do will stop you from doing what your hormones tell you is right. As we have been told by more than one client over the years, “the heart wants what it wants.”
We do have one plea – please, please: be discreet! Don’t flaunt Lance or Bubbles in front of your spouse, and especially not in front of your children! Wait until we can get you divorced, or at least until after we can get your spouse to sign a separation agreement with a good non-interference clause, before you spread your wings and fly like the true social butterfly you think you are. You’ll be saving yourself thousands of dollars in attorney’s fees, and sparing others a lot of hurt feelings and more.
This isn’t just about sex either. It is true that if you are dating someone before you are divorced you can avoid many of the negative consequences that flow from adultery by simply refraining from sex until you are divorced – but even dating poses potential dangers to you, especially when it comes to custody and visitation of your children. If you are going to date before you are divorced, again, keep it discreet – don’t give a judge a reason to doubt your parenting, and don’t give your spouse more reasons to hate you.
I want to move away from Northern Virginia. Is it okay if I go?
Yes, unless (a) you have been ordered by a court to stay here (which would only happen if you are on bond awaiting trial on a criminal charge, or you are on probation or parole, in which case you’ve accessed the wrong web site!) or (b) there are children involved. As in so many other aspects of life, children tend to complicate things.
Basically, other than “(a)” above, you have a right guaranteed by the U.S. Constitution to travel anywhere in the country you want, and no court can make you stay in one state (or one area of a state) or even in this country if you want to move to another. However, if you have children and your spouse has the right to see them under the terms of a court order, then obviously that order takes precedence and you have to obey the order.
In Virginia the process is this: all court orders having to do with custody, visitation or support of children require each party to give the other party and the court at least 30 days’ advance notice of any intent to change their place of residence, giving the proposed new address. That gives the other party time to see their attorney and get before a judge on an emergency motion to prevent the move, if they can convince the judge that the proposed move would interfere too much with their rights to see the children.
In our experience most judges won’t stop a custodial parent from moving from Northern Virginia to, say, Richmond or Front Royal – or even across state lines to Rockville or Bethesda. However, going much beyond that will require a really good reason, and yes, we have seen judges tell people “You are free to leave, ma’am, but the children must stay here”.
Therefore, if you are the custodial parent and are contemplating a move out of Northern Virginia, get us involved as soon as possible so that we can begin to lay the groundwork to get you what you want.
My wife just told me she’s been transferred to Kentucky. Can I do anything to keep her here?
Yes. If you are the non-custodial parent and you learn, even informally, that your spouse is contemplating a move out of Northern Virginia, you should call us right away. You don’t have a veto power over the proposed move, but you do have substantial rights and a judge will listen sympathetically if you complain that the proposed move will reduce your time with the children. Do make sure, however, that you are ready to show that you are capable of having custody of the children. If your wife leaves town despite the court order the remedy is usually that you’ll get the kids and if you aren’t prepared for that, the court may well tell her she can go.
Section IV – If You’re Ready to File for Divorce
You are, obviously, about to take a big step, and you need to be sure you are doing the right thing. First, please talk to your priest, minister, pastor, imam, rabbi, therapist, marital counselor, parent, best friend, drinkin’ buddy, parole officer, or whoever else knows you well and whose opinion you value. This includes, by the way, talking to your spouse, if at all possible.
Then, when you are sure that you are taking the right step, come see us. The course we will take will vary depending on your situation, but will fall into one of the following categories:
- You have a Separation Agreement, signed by both parties, and you’ve been separated for more than 6 months or 1 year.
- You don’t have a signed Separation Agreement but you’ve been separated for more than 1 year.
- You don’t have a signed Separation Agreement, you’ve been separated for less than 1 year), and there is some reason to get before a judge now to get an order entered.
C. The Basics.
Before we consider each category in turn, let’s deal with the basics of how a divorce is filed in Virginia, and how it proceeds to a final decree. For ease of reference we’re going to focus on Fairfax County, since that’s where we do most of our work, but the situation in other Northern Virginia jurisdictions is similar. Every divorce in Virginia follows these essential steps:
- The plaintiff files a Complaint.
- The Complaint is served on the defendant.
- The defendant either
- does nothing, or
- files pleadings in response: an Answer, saying whether the allegations of the Complaint are admitted or denied, and often a Counter-Complaint alleging any grounds of divorce the defendant has against the plaintiff.
- A hearing is set, at which the plaintiff (or the defendant, or sometimes both parties) offers testimony establishing the grounds of divorce alleged in the Complaint or Counter-Complaint.
- The court enters the Final Decree of Divorce and the case is closed.
Of course, if it were really that simple we wouldn’t need divorce lawyers, would we?
D. What Happens in Each Category.
- You have a Separation Agreement, signed by both parties, and you’ve been separated for more than 6 months or 1 year.
Congratulations! You’ve got an uncontested divorce. Your case should be relatively quick and easy to do, with little in the way of stress or expense for you. Your case will proceed pretty much as set forth in “C” above. For step “4”, you won’t have an actual hearing. Instead, you will sign an affidavit (written statement made under oath) to establish that what you say in the Complaint is true (i.e., that you have lived in Virginia for more than six months, that you separated on a certain date, that you’ve been living separate and apart since that time, that you have the intent to separate permanently, and that all your property, support, and custody controversies have been settled by the Separation Agreement). Then we prepare a Final Decree and file the whole package with the Clerk of Court. A few days to a few weeks later (our courts do get backlogged at times) the Final Decree is signed by a judge and we get a copy to send to you. The entire process can take as little as a month, if you are in a hurry and your spouse is willing to cooperate to get the job done.
So, can I set the date for my wedding to my new love for a month and a day from when the Complaint is filed?
No! First, there may be delays. This is litigation, after all, not carpet installation. All kinds of unexpected things may happen, not the least of which is that your spouse may not cooperate, in which case we will have to spend lots of time getting your spouse served with notices of each of the important steps along the way, which will add at least 6 weeks. It’ll be more if your spouse is out of state, because then we may have to serve your spouse through the newspaper, a process which automatically delays things for at least 50 days. Even after the Final Decree is signed, under Virginia law you cannot get remarried for 30 days. So please, please – if you are planning to get remarried, don’t book the church until after you have a certified copy of the Final Decree in your hands! You’ll save a lot of heartburn later on, believe us!
Do we have to go to court for the hearing?
No. As long as it’s all uncontested, you don’t even have to leave your house – you can print out the affidavit you need to sign, sign it, drop it in the mail, and sit back and wait. Several elements of the way uncontested divorces are done now are relatively new. It is much more convenient now than it used to be (in the not so distant past you had to go to court at a hearing in the distant future, have a witness with you, and a court reporter on hand – but over time many of those requirements have eased for uncontested divorces, but it’s been slow – for example, the requirement to have an independent witness to your separation was only abolished in 2021!).
What if I don’t know where my spouse is?
No problem at all. Simply give us your spouse’s last known address and we’ll serve the papers on your spouse through publication in the newspaper.
I just moved to Virginia last week, but I’ve been separated for more than a year. Can I file for the divorce now?
No. You can’t file until after either you or your spouse has resided in Virginia for 6 months.
I’ve been in Virginia for more than six months, but I’m here on sabbatical from my university job back in Michigan. I haven’t changed any of my IDs to Virginia, and I’m still registered to vote in Michigan. Can I still file in Virginia?
No, unless your spouse resides in Virginia. The reason is that you have to not only be a resident of Virginia, you also have to be a “domiciliary” of Virginia, which loosely translated means that you consider Virginia to be your home and place of residence and you don’t have any current plans to leave.
I’m currently overseas on a two year assignment with the State Department, but I’ve been a legal resident of Virginia for years, all my IDs are in Virginia, my legal address is in Virginia, and I will be returning to Virginia when my tour is over – can I file in Virginia?
Yes, probably. Even though two years is a long time, it’s still a “temporary absence” from the state which does not negate your residency or domiciliary status. We just may have to do a little extra to prove that you qualify than we would if you were actively living here.
My wife and I separated more than 6 months ago, but during that time we spent a weekend together at a couples retreat. Did that weekend break our 6 month period of separation?
Probably not, because it was only a trial reconciliation, not a real resumption of cohabitation. However, any trial reconciliation that goes on for more than a week will probably break the period of separation.
Speaking of a “trial reconciliation” – my husband and I were at the old marital home dividing up our property and in a fit of passion we had sex. Afterwards we went our separate ways and did not even spend the night together. Did that break our separation?
Again, probably not. Yes, this does happen in our cases from time to time, and as long as it’s a one-off event, especially if it doesn’t go with any actual residing together, it does not tend to count as an interruption in your separation. That said, when you are separated, sex with your estranged spouse is a minefield – you can’t necessarily trust your same old instincts about body language and consent, you and/or your spouse may well be particularly emotionally vulnerable at that time, and you could find yourself in a situation where there are some real, valid questions about whether your encounter was consensual. As a result, we do strongly discourage clients who are separated from even one-off sexual activity with their estranged spouse, regardless of its impact on the timing of the separation period.
My husband hasn’t done a bunch of the things he promised to do in our Separation Agreement. If I file for an uncontested divorce, does that let him off the hook?
No. What we’ll probably do is to go ahead and get the divorce on an uncontested basis. Then we’ll send him a letter along with his copy of the signed Final Decree informing that if he doesn’t do what he’s supposed to do in the Separation Agreement he’ll be in contempt of court (because the Separation Agreement has been incorporated into the terms of the Final Decree) and he could end up in jail. If that doesn’t work we’ll have to follow through with the threat and bring a contempt proceeding against him.
After you file the Complaint, how are the papers served on my husband?
The standard way is to have a sheriff’s deputy go to his residence and knock on the door. If he’s there the sheriff hands it to him (this is called “personal service”). If he’s not there the deputy tapes it to his front door (this is called “posted service” and is just as good as personal service). Most people don’t like the shock of opening the door and seeing a deputy sheriff with a big badge standing there, and nearly everyone hates the idea of papers naming them in a divorce suit hanging on their front door all day for any passerby to read, or for the neighborhood vandals to rip off, etc. Besides, each time the deputy goes out to serve him it costs you $12, and there can be multiple such instances in even the least complicated case. Not to mention the fact that each time we have to have him served it means at least a three week delay at the outset, and two more two week delays before we can wrap the case up. Therefore, if you think he will cooperate at least to the extent of signing his name to a Waiver of Service form, we will send the papers to him with a nice cover letter explaining where we would like him to sign, and asking him to return the papers to us. If he doesn’t respond within a reasonable time we’ll go ahead and have him served the standard way.
Can you give me a timeline so that I can keep track of the progress my case should be making?
Sure! Here’s a timeline showing the steps along the way to a typical uncontested divorce:
____Initial client contact and preparation of Complaint, etc.
____Complaint, etc. filed.
____Copy of Complaint sent to spouse by us with waiver form and proposed Final Decree of Divorce.
____Defendant sends us back the signed waiver form and signed Final Decree.
____We send you the affidavit for you to sign.
____You sign the affidavit (either in our office or elsewhere) and return it to us.
____We file the affidavit, Final Decree and other papers with the Clerk of the Court.
____The Final Decree is signed by a judge and we get a certified copy, which we send to you.
____You wait at least 30 days before getting remarried (but gee – you just got divorced, so why not wait a little longer?)
It’s worth noting the law has recently been amended so we can send your spouse the complaint and the waiver of service and you the affidavit to complete all at the same time. Then we can file the complaint, waiver, affidavit, and Final Decree in the court all at the same time – it really is convenient.
- You don’t have a signed Separation Agreement but you’ve been separated for more than 1 year.
These cases can either be very simple or very complicated, depending on the facts of the particular case. Assuming you have no children, you don’t need spousal support, and there’s no marital property to be divided, your case is very simple and we can go pretty much as set forth in #1 above. Issues like children, support, and marital property will complicate things, because they will all have to be decided by the time the Final Decree is signed by the judge, since they haven’t been settled by the signing of a Separation Agreement. That means we will have a contested case to the extent that any of these issues have to be determined by a judge. Let’s examine each issue in turn to see how the court system deals with them:
- Child Custody and Visitation.
This is the one area that a judge’s least favorite thing to get into. You can imagine the judge’s quandary – how is any judge going to get enough information about you, your spouse, and the children to make an intelligent decision in just a few hours of a hearing? If there are allegations of abuse or neglect the judge may appoint a guardian ad litem for the children, whose job is to essentially act as the attorney for the children, and to report to the judge as to what he or she thinks is best for the children. By the way, “ad litem” is not a typo. It’s a Latin phrase that simply means “for the litigation”. In other words, the guardian ad litem’s authority ends when the case is over.
- Child Support. This is an area where the judges’ discretion has been most severely limited, which has made the task of setting child support much easier for the judges. It is usually set at a hearing shortly after the defendant files an Answer to the Complaint. This hearing is called a pendente lite hearing. “Pendente lite” is another Latin phrase that simply means “pending the litigation”. Nowadays this hearing can be done fairly quickly because there is a statutory form that has to be filled out and presented to the judge, called a Child Support Guideline Worksheet, which sets forth your gross income per month (that is, before taxes and other deductions are taken out), and your spouse’s gross income. That gets us a combined gross income, and from there we consult a statutory table that tells us how much the child support need is for the number of children for whom support is being sought. Then, we add in the cost of work-related day care, and the cost of health care coverage for the children, to arrive at a total child support need. Then we simply multiply that figure by each party’s percentage of the combined gross income to arrive at the amount of each party’s share. The non-custodial parent pays his or her share to the custodial parent. By law this is supposed to be done by withholding from the non-custodial parent’s wages, so an Income Deduction Order will frequently be signed at the same time.
- Spousal Support. There are no statutory guidelines for this subject, so the judge is given wide discretion. There has been a real change in the last 20 years about spousal support with judges. Practically speaking, nowadays a spouse will only get permanent spousal support if there has been a relatively long marriage (at least 10 years or more), during which time the spouse has become dependent on the other by agreement of the other spouse (such as an agreement to stay home and raise the kids), and there’s some reason the dependent spouse can’t get a decent paying job (such as having to care for infant children or children with special needs, or being too elderly to be able to get back into the work force).
- Marital Property. Lots of things to consider – see my discussion of this subject in section I(C) above.
- Child Custody and Visitation.
- You don’t have a signed Separation Agreement, you’ve been separated for less than 1 year, and there is some reason to get before a judge now to get an order entered.
There are a bunch of reasons this may happen. For instance: what if your spouse has left and isn’t paying support for you or the children? What if your spouse has a $400,000 401(K) plan in her name alone, and you are worried that she may withdraw it and put it someplace where you can’t find it? What if you have an unwritten agreement that your spouse will return the children from a visitation session at 7:00 p.m. Sunday, and it’s now midnight and there’s no sign of him or the children? In other words, what if you bloody can’t wait a year to get before a judge? If so, just call us. There are a number of ways we can get before a judge right now – or at least within a week or so.
Section V – If You’re Involved in a Contested Divorce
A contested divorce can occur for any number of reasons. In fact, there are at least five different areas in which a conflict can occur – grounds of divorce, spousal support, child support, child custody and visitation, and division of property. This means if you amicably settle 80% of the issues in the divorce, you could still be headed for a long, nasty trudge through the legal system. As you might have guessed, then, divorce is one of the areas where cases are less likely to end in a complete settlement, and more likely to see some time in front of a judge. If you’re reading this section, then, your case has likely already hit that point, or is heading that way, or at the very least you fear it might.
This section seeks to give you a peak at the “worst case scenario” – what to expect if you settle nothing. Remember as you read this that a case is allowed to settle at any time. It is literally never too late to settle a case. Even after the judge has ruled! You can almost always decide that there is another way that would be better for both of you, and by agreement change the judge’s ruling. Finally, also remember that there is no rule against partial settlements. You can settle property without giving up any of your rights for spousal support, etc. So, this is truly a worst-case scenario – many of the most contested cases we see still don’t go through everything we will lay out here.
B. The Process.
While on paper the process for a contested divorce is much the same as for an uncontested divorce, the reality is very different. Here is a brief summary of each step of the process in a contested divorce.
- The Complaint. Much like an uncontested divorce, a contested divorce starts with a Complaint for divorce. The Complaint must include a ground for divorce. If you have been separated for more than a year, you can still seek a divorce on the ground of one year separation (although this is the path for an uncontested divorce, this can be part of a contested divorce as well, it just means the ground of divorce itself probably won’t be contested). If you have not been separated for more than a year, or even if you have, you can also seek your divorce on one of the fault grounds mentioned in Section I. Your complaint will also lay out any important allegations you have against your spouse, and, most importantly, the matters you want the court to resolve (custody, child support, spousal support, etc.). If you believe something has been resolved, you can also say this in the Complaint (if property has been resolved, for example, your Complaint can state “no property issues remain between the parties”). It is very important that if you want something, especially spousal support, you request it in your Complaint. Numerous volumes of Virginia Court Reports cover cases where someone thought everything was going swimmingly until they got to trial and discovered they had not requested what they wanted way back in their initial complaint, and now it was too late to change it so they were out of luck.
- The Pendente Lite Hearing. A contested divorce can take anywhere from nine months to a year or even longer. In the meantime, if you were dependent on the other spouse and need support, you simply cannot wait that long to start receiving it. If your divorce is contested, you also probably cannot get an agreement from that spouse to pay you in the meantime. As a result, most contested divorce cases begins with a pendente lite hearing. “Pendente lite” is a Latin phrase meaning “pending the litigation.” As the phrase would indicate, a pendente lite hearing is a short (usually 30 minutes) hearing in which the judge can decide on a number of matters pending the outcome of the litigation. In other words, until the case is resolved, a pendente lite hearing sets support, and can legally determine many other short-term rights (use of the marital residence, custody, etc.). Because at 30 minutes a judge cannot hear nearly all of the evidence involved, a pendente lite ruling is usually meant as simply a stop-gap measure, and holds no precedential value over the final hearing. In fact, it is almost unheard of to have a final award that exactly matches the pendente lite award.
- Answer. Frequently a pendente lite hearing is held less than 21 days after the Complaint is filed, meaning it often occurs before the Answer is due. In the Answer, the defendant now gets the chance to respond to the allegations made in the Complaint. The defendant can also file a Counter-Complaint, seeking a divorce for his or her own reasons and making his or her own allegations. Of course, if you file a Counter-Complaint, the other side then has 21 days to file an Answer to that Counter-Complaint. As you can imagine, sometimes you’re just at the opening filings and you already have 50 pages of paperwork!
- Scheduling Conference or Term Day. In Fairfax County, once a Complaint and Answer has been filed, the court will set a scheduling conference. This is where the date for the final hearing will be set. If custody and visitation of children is in dispute, two trial dates will be set, with the final hearing at least 30 days after the last day of the custody/visitation hearing (that’s right, a divorce can involve two separate and distinct trials). In other counties, you petition the court for “term day,” which occurs approximately once a month or once every other month, and at which all cases set for that term day are scheduled. In either case, you can usually expect that the soonest the case will be allowed to be scheduled will be at least three months away, and sometimes as long as a year away.
- Discovery. “Discovery” is the general term for the process by which each side has to reveal a whole heck of a lot of information to the other. In a typical contested divorce, about 80-90% of the disputes, time, and attorneys’ fees comes from discovery, be it preparing discovery, responding to discovery, preparing responses to discovery, noting deficiencies in the other side’s discovery, going to court over those deficiencies, preparing additional responses to respond to those deficiencies, going to court over the deficiencies in the responses meant to resolve deficiencies…. the list goes on. That being said, a contested divorce is also frequently won or lost in discovery, so the time is certainly well spent. In Virginia there are four basic types of discovery:
- Interrogatories. One side can send, either at once or in a series of requests, what are called “Interrogatories” to the other side. These are essentially open-ended questions which the other side must answer under oath. This is a good place to find out about the other side’s employment, expectations, and positions on the issues. No more than 30 Interrogatories can be asked over the course of litigation.
- Requests for Production. One side can send, either at once, or in a series of requests, what are called “Requests for Production” to the other side. These requests are, in fact, not really requests, they are requirements. Unless they fall into a narrow set of exceptions (such as producing the items being too burdensome, or not leading to admissible evidence), the other side is required to hand over to the requesting side copies of all documents, video tapes, pictures, or other things that are requested. If an item is too big to be sent, or cannot readily be copied, the other side is required to provide the requesting side permission to inspect the item. This is a great way to see bank statements, pay statements, and other documentation that might be used against you in a trial. There is no limit on the number of requests for production that can be made.
- Requests for Admission. One side can send, either at once, or in a series of requests, what are called “Requests for Admission” to the other side. As with Request for Production, these are not really “requests.” Basically, each request will make a statement that the requestor believes to be true. The person responding can then admit that the statement is true, deny its truth, or if the person cannot admit nor deny its truth, then they must explain why they cannot. Once a statement is admitted, the person admitting it no longer has the right to deny the truth of that statement for the remainder of the litigation unless a new fact arises. If the person responding to the requests denies a request which is later proven to be true, the person denying the request can be held liable for the attorneys’ fees the other party incurred proving the truth of the statement. This process is a great way to get some basic facts out of the way, and avoid unnecessary time litigating issues that are not, in fact, issues. There is no limit on the number of Requests for Admission that can be made about whether or not a document is genuine or authentic, but no more than 30 Requests for Admission can be made over the course of the litigation which are not related to the genuineness of documents.
- Depositions Either side can compel the other to come to an office (usually their own attorney’s office) and submit to a deposition where, under oath, they must answer questions asked by the deposing attorney. Additionally, other witnesses can be compelled to participate in a deposition by way of a subpoena. A deposition is a great way to find out what a person will say on the stand, and know what further information needs to be collected to prepare for their testimony. It is also a great way to learn information from potential witnesses since you can’t send people who aren’t a party to the case Interrogatories.
- Timing. Discovery does not have to come at this stage in the litigation. In fact, discovery requests can be served on the defendant at the same time as the Complaint, or as late as 21 days before trial (with some exceptions – in Fairfax County, for example, discovery requests cannot be served less than 51 days before trial). Once discovery requests are served, the responding party has up to 21 days to respond (or 28 days if the requests were served at the same time as the Complaint). As long as you don’t miss by much, the penalty for being a little late is not too severe, with one key exception – Requests for Admission. Any Request for Admission not responded to within 21 days (or 28 days if that is the deadline that applies) is deemed “admitted”! So, if there are Requests for Admission outstanding, make sure your attorney is on that deadline! Finally, discovery need not be served all at once. You can serve requests multiple times over the course of the litigation – so long as you don’t ask more than a total of 30 Interrogatories and 30 Requests for Admission that don’t relate to genuineness of documents – and the deadline for each specific request is 21 days (or 28 days) after that specific request was served.
- Trial. After going through nine to eighteen months of Complaints, Counter-Complaints, Discovery Disputes and hearings, most people are excited when the day of trial finally rolls around. This is where everything that’s been done up to that point, especially in discovery, comes out. A trial can last anywhere from a morning to five days or longer, depending on the issues involved. The best part of all, however, is that once the trial is over, there is, finally a ruling. Now, if you are a normal person, you probably think that, great, the judge has ruled, that’s the end of the case! Well, you would also be dead wrong.
- Entry of the Final Decree. Once the judge rules, rarely, if ever, will the judge write out an order. Instead it’s up to the two attorneys to take what the judge has said, put it down on paper, and come back to get the judge to sign it. While this is usually fairly straightforward, it is not uncommon for disputes to arise over what the judge said, what the judge meant, and/or a desire to reach a settlement that is mutually better than the ruling. While a Final Decree is normally entered within a month of the trial, it isn’t always, and we have seen it take six months or longer! Remember, the divorce isn’t actually final until the Final Decree is entered! Ok, but now that the Final Decree is entered, surely the case is over, right? Oh my, don’t you wish that was true.
- Twenty-one Day Jurisdiction Retention. In fact, the judge continues to have jurisdiction over the case, including the ability to change rulings and orders, for twenty-one days after the Final Decree is entered. During this time, either side (or both) can file a Motion for Reconsideration, where they ask the judge to reconsider any of his or her rulings. Usually, along with this motion will be a request for a Suspending Order, where the judge will stop the Final Decree from actually going into effect until the judge rules on the Motion for Reconsideration. This can sometimes take a month or longer. But, once the Motion for Reconsideration is denied, can’t you finally move on with your life? Somehow, I think you already know where I’m going with this.
- Thirty Day Appeal Window. Once the Motion to Reconsider is denied, the Suspending Order is lifted and the 21 day count starts again. However, there’s another deadline to be aware of. If either side is going to appeal the ruling of the Judge to the Court of Appeals, they have thirty days from the entry of the Final Decree to do so. But, if a Suspending Order is entered, that thirty day window actually does not start until the Suspending Order is lifted. While it is still possible to file an appeal, neither party can get re-married, and if an appeal is filed, it may be another year before the case is finally resolved. If, however, the Final Decree is entered, and the thirty day period has expired without an appeal being filed, then, finally, the case is over, and you can move on with your life. Sort of.
- Modifications. Once a divorce is truly final, the rulings regarding the divorce itself and the division of property are pretty much set in stone. Rulings regarding spousal support, child support, and child custody and visitation, however, are subject to modification. When there is a “material change in circumstances” (something like gain or loss of job, significant change in income, the custodial parent is sent to jail, etc.), a party may seek to re-open the case. This does not undo the divorce, but it can cause the support numbers, support duration, and the child custody and visitation arrangements to be changed. In other words, the case isn’t really over until spousal support has expired and the kids are done with high school (and not disabled).
I didn’t want to agree to my wife’s terms for settlement, but now I’ve been served with a Complaint and with discovery requests and, frankly, I’ll spend more in attorney’s fees dealing with these than I would spend giving her what she wants. Is it too late to settle?
No. As we said above, it is never too late to settle. In fact, sometimes serving the other party with discovery requests is just what the doctor ordered to change their mind about settling. While you should always try for the best result you can, it is more than reasonable to keep the attorney’s fees of a contested divorce in mind when deciding if an offer is worth accepting or not. Nonetheless, you should still always talk to an attorney before settling, even if your discussion only leads you to conclude that yes, you should accept that offer.
I heard that settling is better than having a contested divorce because there are things a settlement can require my spouse to do that a judge in a contested hearing can’t. Is that true?
Yes and no. It is true that there are many things that can be done by agreement that cannot be done by a judge. This includes transferring property that is in one party’s name only to the other party, continuing child support past the age of 19, requiring both parties to contribute to a child’s college education, leaving a retirement fund intact in exchange for more money available immediately (or vice versa), receiving spousal support in a form other than money, continuing spousal support after re-marriage of the spouse receiving it, and many other potential options. Moreover, once these are done by agreement, they can then be incorporated into a court order, and have the weight of police enforcement behind them. However, we cannot agree that settling is “always” better, because sometimes the other side just will not be reasonable, and you have to go to court to assert your rights.
The judge at the Pendente Lite hearing gave my wife a lot more in spousal support than I think she needs. Should I give up and just agree to make that her final spousal support number?
No! We cannot say it enough times, pendente lite awards have no precedential value for determining the final award! In fact, a pendente lite award is frequently based on a guideline worksheet that is not even admissible at the final hearing. Additionally, if you think your spouse is not working but should be, someone called a “vocational expert” can be used at the final hearing to show the judge what your spouse should be making – something that just cannot be reasonably done in the limited time for a pendente lite hearing.
I think I’m going to be a day late in getting the documents they requested to you, what’s going to happen to me?
Well, that depends. Usually it’s ok – the other side probably won’t even have time to complain. However, if you have Requests for Admission outstanding, make sure your lawyer sends those, at the very least, on time. Also, make sure you let you lawyer know when you think you’ll have the documents so your lawyer can at least do the courtesy of letting the other lawyer know to expect the delay. Beyond that, if it’s less than a week, usually nothing will happen to you. If it’s more than that, a “Motion to Compel” might be filed in which a court order is sought to order you to provide the materials and possibly to order you to pay the other side’s attorneys’ fees for having to bring the motion. Sometimes a “Motion for Sanctions” can also be filed, which can impose penalties against you, including paying some of the other party’s attorney’s fees, and even not being allowed to present some evidence at trial! Sanctions usually are not entered, however, unless a Motion to Compel has already been granted and violated. Nonetheless, if you want to be safe from all possible consequences, get your responses done on time.
My husband just made a very damaging (to him) admission in response to a Request for Admission – how do I know he won’t take it back at trial?
Because the Rules of the Supreme Court of Virginia don’t let him. Once someone has admitted a statement in a Request for Admission, that’s it, it’s admitted. If your spouse says something else on the stand, we need only show the judge the response to the Request for Admission, and the judge is required to take that admission as the final answer. This, by the way, is why responding to Requests for Admission on time is so important. If you don’t respond on time, you are considered to have admitted everything, and then you cannot later deny the truth of those statements.
I am getting re-married, and, remembering what you said about that 30 day appeal window, have booked a venue for ninety days after my trial – is that safe?
Probably, but not a guarantee. We strongly recommend, as stated previously, that you wait until the appeal window is over to even book a venue. The odds are, even in the most hotly contested case, the Final Decree will be entered within a month after the trial, and there will be no appeal (appeals are, after all, very expensive – sometimes even more expensive than the whole trial process). This means, you will probably be in the clear to re-marry after around 60 days following the trial – but again, this is not a guarantee. As we said, we have seen it take six months or more for a final decree to be entered, and even then an appeal can be filed, in which case your deposit will be long gone and your wedding illegal.
I was ordered ten years ago to pay my wife permanent spousal support, but I just found out she got re-married five years ago and never told me. What can I do?
Call us, right away! As we said, spousal support (unless there is an agreement otherwise) terminates when the party receiving support re-marries. Additionally, while normally a modification of support, either child support or spousal support, is only retroactive to the date your motion to modify was filed, there is an exception for a case of a concealed re-marriage in spousal support. In other words, not only can you terminate your current support obligation, you should be able to get the five years of payments back, plus interest and attorneys’ fees!