Virginia Laws on Divorce, Child Custody, Child Support, Alimony, and More
- AIDS Infection
- Alimony in Virginia
- Annulments in Virginia
- Attorney Fees
- Bankruptcy in Virginia
- Changes in Virginia
- Child Custody
- Child Support
- Child Visitation in Virginia
- Children in Virginia
- Costs in Virginia
- Dating in Virginia
- Defenses in Virginia
There are many things you need to know about divorce in Virginia. First, a piece of advice: Divorce is never pleasant. Avoid it, if possible.
Some Virginia divorces are more unpleasant than others, and some are necessary to clear away a mistake that blocks you from leading a better life. Following are many topics that apply to divorce cases. It does not and cannot cover all the issues, laws, or rules involved.
Some will apply in your case and some will not. However, knowing those that apply will help you avoid some problems and deal better with others.
This document explains Virginia divorce laws, as we understand them, as we wrote this in 2018. Virginia laws on divorce are always subject to amendment by the legislature, to reinterpretation by the courts, to different application by different judges, and to factual variation from case to case.
Before acting on what you have read, talk to us first—that is why we are here. This is not legal divorce advice specifically for you. It is information which we believe will make matters less difficult for you.
Divorces in Virginia can be “contested”, which requires adversarial proof, or they can be “uncontested” (which are usually based on a mutual and voluntary separation of at least six months).
Uncontested Divorce in Virginia
If the parties agree to be divorced, you must have a written Separation Agreement that makes adequate and sufficient provisions in writing for the custody and support of the minor children of the marriage and makes a fair and equitable division of your property. If there are no children, and an agreement, you can file for divorce with six month’s separation.
If there are children, or you and your spouse cannot reach an agreement, you have to be separated for at least one year. There are also additional technical requirements, but the Separation Agreement is the essence of an uncontested divorce. As for assessing fault for the marriage breakdown, you only need to say that differences have arisen that will prevent you from living together as husband and wife, there is no hope of reconciliation and you intend to end the marriage.
A contested divorce is a case in which the parties cannot agree on one or more points (property division, alimony, child custody, child support, or attorney’s fees). Even when parties have lived separate and apart for six months, and wish to be divorced but cannot agree to the terms of financial settlement, or custody, it is still a contested divorce.
Finding the right divorce lawyer is one of the most important things you can do in your divorce. You want someone who is skilled, experienced, empathic, creative and who will return your emails or phone calls. You also need someone you can communicate with and trust. Where do you find such a person?
Word of Mouth
We get most of our clients through recommendations from clients and colleagues. Ask around. Your family, friends, neighbors and co-workers will know a divorce lawyer they can recommend (or ones to stay away from).
Find a lawyer the way you find everything else these days. Google “divorce lawyers” in your neck of the woods. Most law firms have websites and blogs you can check out to get bio’s and
A permanent and final divorce is called a “divorce a vinculo matrimonii” (meaning from the bonds of matrimony) in Virginia. All divorces require proof of grounds. If you are filing for divorce, you need to have your grounds before you file. If you cannot prove your grounds for divorce, accusing your spouse of these grounds may be grounds for the award of legal fees to your spouse. Pending the final divorce you should not do anything to give your spouse any grounds for divorce because it can probably be used against you. In Virginia you can be living separate and apart under the same roof, but this is difficult to prove, and requires planning.
The grounds for a final divorce in Virginia are as follows:
At least one year imprisonment.
Six months with a written agreement and no children, otherwise one year.
If you are not ready for a divorce but you want to talk things over with someone, we recommend counseling and we will be glad to recommend some counselors. If you do not want a divorce, do not get one. However, even if you do not want a divorce, after 12 months of continuous, uninterrupted separation, your spouse is entitled to proceed, whether or not you agree. The law does not force people to stay married if they are determined not to.
Defenses to the grounds for divorce in Virginia include:
Knowing what your spouse did wrong but forgiving him or her anyway; this is usually proven by showing that you and your spouse had sexual relations after you found out what your spouse did.
A defense to divorce if the person who is guilty of the grounds for divorce was insane when he or she committed the act. The insanity must be to the same degree as in a criminal case. If the person is insane at the time of trial, the case can still proceed against him or her but the court will appoint an attorney to look after his or her interest. These facts are unusual.
The law of defenses is subject to change, and for technical reasons the defense that sounds like it applies in your case might not apply. Ask us about it.
There is no such term as a legal separation in Virginia. However, you may obtain a limited divorce, also called a “divorce a mensa et thoro” (from bed and board). A limited divorce also requires that you have grounds. The grounds for a limited divorce are different than the grounds required for a final divorce, and they are as follows:
Desertion or Abandonment
A limited divorce may have some advantages in certain cases, e.g. remaining on health insurance, or tax benefits. Ask us about it.
We normally do not recommend a limited divorce because you usually wind up divorced anyway, and instead of paying for one lawsuit, you pay for two.
Marriage annulments are granted by the court only in certain rare cases. The legal effect is to void a marriage from the very beginning—as if the parties had never married. If for religious or other reasons you want a marriage annulment in VA, tell us before the divorce is filed.
Prior to filing for a divorce, you must have been a bona fide resident and domiciliary of Virginia for six months. However, emergency, custody or other matters may be filed in Virginia without six months residency. However, just because you have lived in Virginia for six months does not necessarily make you a domiciliary. Check with us.
The first step in a divorce proceeding is the preparation and filing of a Bill of Complaint. The legal document that starts the proceeding is entitled “Bill of Complaint for Divorce”. The Bill of Complaint states the grounds for divorce and the vital statistics of the parties and the marriage.
It also covers certain technical matters and asks the court for anything you might want. If you and your spouse cannot agree on something (support, custody, visitation, property division, attorney’s fees, court costs) then you must ask the court for it in the petition or the court cannot give it to you. If the list seems long, or if it includes more than you want, think of it as a wish list.
If the wording seems strange, remember that it is a formal legal document and much of the wording is required by law. If your spouse has already filed, be sure that we have a copy of the Bill of Complaint as soon as possible.
There may be tactical advantages for the person who files a Bill of Complaint first. The person who files first is the complainant. The other person is the defendant and that person must respond to your Bill of Complaint in a formal document known as an Answer.
The defendant may also want to complain that the complainant was at fault. To do so the defendant files a Cross Bill. This is usually followed by a process called Discovery, which can include written questions, known as Interrogatories, Requests for Admissions or Requests for Production of Documents, and face-to-face questioning before a court reporter, which is called a Deposition.
If possible, talk to your spouse about divorce before you file. It is hard to keep open lines of communication if your spouse has been surprised by a process server serving divorce papers on him or her at 4:00 A.M. (which is when they sometimes serve papers).
Most likely the next document drawn up in your case will be a proposed Voluntary Separation and Property Settlement Agreement. Divorces usually settle in the beginning when both parties feel guilty or in the end when both are exhausted. We will draw up the agreement but we need to know who gets what and who pays what. You are encouraged to settle as much as possible between you—even if you give up a little it is much less expensive. You can include many things in your agreement, some of which are listed below:
Court cost and attorney’s fees
Who gets the house? Who gets the note? How does the equity get divided if it is sold?
Who gets which car, what appliances, and what happens to the sofa in the den?
What happens to any retirement benefits that have accrued?
Who pays what? Should the debts be paid off by refinancing?
How much? How long?
Who gets which child? Should any aspects of custody be shared? The noncustodial parent may be the one who is a doctor and may be the one who should make medical decisions. Will joint custody work?
How much? How long? Who carries health or life insurance on children? Who gets to claim the children as income tax deductions? Private school or college tuition?
Do you want a specific schedule or can you and your spouse work together on it?
Who is insured? Who is the beneficiary? Term or cash value? How much?
Who is covered? In many cases an employee’s spouse can be covered up to thirty-six months after the divorce by the employed spouse’s insurance for an additional premium. Sometimes one parent’s health coverage is cheaper than the other’s and the cost differential can be reimbursed in other ways.
Security for obligations in the agreement, for Wills, for death, and for taxes—(You cannot avoid death or taxes, so you may need to provide for them.)
If you try to work something out with your spouse yourself, the following are some useful pointers to remember:
Meet on neutral ground
Not at his office or at her mother’s home, but some place where both parties will feel comfortable.
Put aside time
A reasonable amount of time should be set aside to deal with the issues. If you leave to answer a telephone call just as you almost have things worked out, you may find that things have fallen apart when you get back. On the other hand, do not leave the meeting time open ended. A meeting without a deadline will drag on and issues will not get resolved.
Set an agenda
Decide what will be dealt with at the meeting. “This week we will decide on custody and child support, next week we will decide on the house.”
Do not bog down
Try to talk about what you agree on. No matter how bad it is, there are some things you agree on (“the marriage stinks, or “the kid is cute”). If you hit a point that gives you trouble, move on to something else and come back to the problem after you have resolved some other issues.
Reschedule as needed
If things start to turn nasty, if someone gets angry, or if you are losing everything, re-schedule the meeting for another time. It is important that both of you feel that the agreement is a good thing.
Keep the kids out of it
Your children do not need to be involved in this. Do not have them around. They will interrupt you, and it will upset them. Do not discuss or complain about the divorce to the children. Reassure them that they will be provided for—even if you are worried about it.
Start talking early
Divorces usually settle early on when both parties feel guilty and are not locked into a position, or divorces settle after much litigation when the parties are too exhausted to fight anymore. Sometimes you can get more with guilt than you can get at a trial.
If you and your spouse work out something and you make notes, do not sign the notes. This could be considered to be an agreement. If it is not in the correct legal language, you may be bound by something other than what you thought you agreed to.
The legal requirement for separation before filing requires at least separate sleeping arrangements and a lack of physical relations. In the Virginia this does not necessarily mean separate households, but it makes our job harder to prove separation to the Court if the parties are still living under one roof.
Renewing physical relations destroys your grounds for divorce. Reconciliation after a divorce may have tax consequences you need to explore. However, we encourage reconciliation.
All too often people use the telephone not to communicate but to destroy communication. The angry spouse may call to scream insults or make hang-up calls.
The first case is the easiest to deal with—hang up. If you choose to stay on the telephone and to listen to the rude jerk who called, then you have made a bad choice and you should not complain about it.
Hang-up calls are tough—once you pick up the telephone you have lost. The answer is technology. Get an answering machine. The machine will screen your calls, and you can return the calls of the people you want to talk to. If your spouse calls and curses at you over the machine, we can bring that tape to court for the judge to hear.
The telephone company offers services in our area that may be very worthwhile to you at this time, including the following:
This traces calls so we can prove to the court who made the call.
This locks out calls from certain numbers. You can block out your ex-spouse-to-be and many of your ex-in-laws-to-be.
This identifies the number from which the last call to you originated.
There was once a client whose ex-spouse called every night at 3:00 A.M. to plead with her to come back. His offer of reconciliation was somewhat tarnished by his newly contracted venereal disease. His late-night pleadings both upset our client and deprived her of sleep. She solved the problem herself by ordering call forwarding. When she went to bed, she would forward her calls to Dial-A-Joke.
Do not date. You are married. Your spouse can use it against you. If you are divorced, moving in with your lover could cause problems with custody, visitation, or alimony. If you do date, be prepared to face the problems that may arise. Tell us about it, because if we are surprised by it in court, it will hurt your case.
If you suspect your spouse may have been exposed to the AIDS virus, you must have yourself tested for AIDS. Your exposure is not only to your spouse but to everyone who had sex with anyone who had sex with your spouse. The most frequent avenue of exposure we deal with is sexual contact.
However, that is not the only means of contracting AIDS. Exposure to blood is also a risk. Therefore spouses of physicians dentists, undertakers, or any medical workers have a special concern. Consult your physician and let us know the results of any test. If you are unsure if you need to be tested, you need to be tested.
Uncontested divorces usually take two to three months, after filing in our experience, and contested divorces can take up to eighteen months. During the waiting period we will try to help you work out the details of custody, visitation, support, and property settlement, or, if necessary, prepare for trial. Certain circumstances may qualify for a quicker divorce, but we recommend a quicker divorce only in unusual situations.
It is critical you tell us all you know about all the assets. The more we know, the more we may be able to get for you.
Property includes assets as well as liabilities; real estate; and personal property, both tangible and intangible. Property can include houses, pensions, businesses, coin collections—almost anything.
The legislature has set out criteria for alimony, child support, and property division.
First, you must find and value the property (equity in the house, value of pensions, value of antique furniture).
Next, you must determine whether the particular piece of property is separate property and remains with the person who owned it.
Separate property is usually acquired before the marriage or outside the marriage, such as by gift or inheritance, or is excluded by a valid agreement.
Marital property is usually acquired during the marriage. To determine who gets what marital property, the court will consider:
- Duration of the marriage
- Prior marriages
- Vocational skills
- Nonmarital assets
- Is distribution in lieu of alimony
- Future opportunity to acquire assets and income
- Contribution (up or down) to value of assets
- Contributions to the family unit (e.g., as homemaker)
- Other relevant factors that the court considers appropriate
If you and your spouse can agree on how things will be divided and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property, provided you can prove one of the grounds to divorce. If you cannot agree and cannot prove at least one of the grounds, you cannot get divorced.
Despite an agreement for one spouse to pay a debt that is in both parties’ names, if the party responsible for the debt does not pay the debt, the other party can still be sued for the debt.
For example, the wife gets the house and the husband agrees to pay the mortgage. The husband dies or goes bankrupt. The wife may or may not be able to sue the husband. In any case the mortgage company can foreclose on the house if the payments go unpaid and sue the wife for any unpaid balance after foreclosure. The best way to protect the wife in this case would be for the husband to refinance the property and to remove the wife from the debt if possible.
Sometimes this is financially impossible for large debts such as houses, but can still be done with smaller debts such as second mortgages and charge accounts.
Do not hide assets. These assets are usually found and if they are found, you will look like a crook to the court. The judge will have trouble believing what you say about anything after that, but the judge will not have too much trouble assessing attorney’s fees against you for your behavior.
Alimony in Virginia can be awarded on a temporary and “rehabilitative” basis or on an indefinite basis. Rehabilitative means to restore a party to an economic functioning level, i.e. earning a reasonable living. The public policy is to assist the former spouse to be self supporting.
If temporary alimony cannot bring about rehabilitation, then the court can, in proper circumstances, order alimony on a long-term or indefinite basis. Indefinite alimony can be raised or lowered over time if there is a change of circumstances. If you do not get alimony at the time of the divorce, you cannot get alimony later on.
Technically, husbands can get alimony from wives, but it almost never happens. Alimony is based upon the relative needs and resources of the parties. The legislature set out criteria for the court to consider and they include the following:
- Ability of the party seeking alimony to be wholly or partly self-supporting.
- Time necessary for the party seeking alimony to gain sufficient education or training to enable that party to secure suitable employment.
- Standard of living that the parties established during their marriage but giving consideration to the fact that there will be two households to maintain.
- Duration of the marriage.
- Circumstances which contributed to the estrangement of the parties.
- Age of each party.
- Physical and mental condition of each party.
- Ability of the party from who alimony is sought to meet his or her needs while meeting the needs of the other party.
- Financial needs and financial resources of each party; including:
- income from assets,
- both marital and non-marital
- potential income which may be imputed to non-income producing assets of a party,
- any previous award of child support in this case,
- the financial obligations of each party,
- the right of a party to receive retirement benefits,
- and the taxability or non-taxability of income.
Living with someone after the divorce, regardless of whether you have sex or not, may cause indefinite alimony to be lowered or stopped. Death of one of the persons paying or receiving alimony or marriage of the person receiving alimony will terminate alimony unless the divorce settlement agreement provides otherwise.
If you cover your spouse or children on your insurance, do not drop them from the policy at least until the divorce is final. You are probably responsible for their medical bills until then anyway. Even after the divorce, the employed spouse may want to keep the spouse and children covered.
The court can order a divorced person to continue health insurance coverage for their ex-spouse and children. If you are paying child support, a large unexpected medical expense for the child could be assessed against the noncustodial parent as additional child support. The same could happen with alimony and an ex-spouse.
A recent federal law allows most employees to cover their spouses for up to thirty months for a small additional premium. However, the employer must be notified prior to the Final Decree.
Close joint accounts and notify the banks, charge cards, and others by a certified, return receipt letter that you are no longer responsible for your spouse’s expenses. You may want the company to reopen an account in your own name. This is a good time to request it. We will write these letters for you if you ask us.
At the bank you may want to divide joint accounts or put them in your name. This sometimes will make the judge angry with you, but it is often easier to give money back than to get it back. If you are the breadwinner do not put your dependent spouse out in the cold without some money to get by on. This will aggravate the judge who will make you pay anyway.
Do not cut off the utilities on your spouse or your spouse and children without giving them plenty of notice. Make sure you can prove this notice to the court because leaving your spouse and children home without heat or light in December seldom sits well with the judge.
Divorce proceedings are very emotional, and parties sometimes use children to seek revenge. If we believe you are doing this, we will not represent you. Try to keep the children out of this; if they must be involved, prepare them properly without poisoning their minds about your spouse.
Obtain professional advice if possible. But don’t try to use your child’s therapist to gain an advantage in a custody battle. Tell the children that the divorce is not their fault and that they will still have both parents. We will be glad to recommend a counselor if you want one.
Discuss support and property division with your spouse. Do not use the children as messengers. Make a special effort to spend time with your children during this difficult time. Give them your full attention. Reassure them that both parents love them, even if you do not believe it. Give them extra love now—they need it.
Disagreement over child custody is almost guaranteed to put you right in the middle of a bitterly contested and expensive divorce. Child custody cases are the cruelest and most destructive of litigations. Be sure that the children would be significantly better off with you than the other parent before you get involved in a custody fight. Custody cases are expensive in both emotional cost and in legal cost. The damage caused by winning a custody case is great; the damage caused by losing is terrifying.
The legal standard in deciding who will get custody is what is in the best interest of the children. Every judge sees it differently. If the judge’s father abandoned his family and the judge’s mother slaved day and night to help her son through law school, then the judge will have a hard time understanding why a father should have custody. The mother does not have an automatic edge in litigation in Virginia. The fathers win in at least half of the litigated cases.
There are also certain doctrines and presumptions (but not inflexible rules or requirements) which aid the court in determining the best interest of the child:
Parents must be shown to be unfit before the children will be given to someone else, such as grandparents.
Continuity of placement
If children are doing well where they are, do not mess things up by moving them.
A judge will consider who the children want to live with. The judge may talk to the child in private and may talk to a child younger than fourteen years of age. The judge is not bound by what the child wants.
The court can consider the custodian’s age, health, wealth, religious beliefs, conduct, type of home, psychological evaluations; the location of the residences of the child’s siblings; the child’s school performance; or anything else the court considers important.
If there is custody litigation, you must be able to show the judge that the child is better off with you. Photographs of you and your child having a good time doing things together is useful evidence. This is a good time to subscribe to publications such as Parents magazine. Buy some books about children, parenting, and getting children through divorce. Attend seminars and keep the brochures and literature. The point is to do these things for your child and yourself, not just to impress the judge.
In arriving at a fair amount of child support, the court will look at the needs of the children; and the financial assets, earnings, and needs of each parent. Virginia has enacted child support guidelines. These are based on the income of the non-custodial parent, the number of children and the age of the oldest child. You probably will not have to pay more than 35% of your income in child support. The guidelines provide for an adjustment for health insurance for the children and assume that the non-custodial parent pays for the children during normal visitation. If there are any extraordinary expenses (medical, educational, etc.) then the support could be higher than the guidelines.
The court can order you to pay child support and provide such things as health insurance. The court can require support of a normal child only until the age of twenty one. If you have a child with a mental or physical disability, be sure to let us know, as it may be possible to have support continue after this child turns twenty one. Virginia does not require a parent to put a child through college. You can provide for college, but you must do so by agreement as the court cannot order it. If the children’s needs or the parent’s ability to pay support substantially changes, then child support can be raised or lowered.
Child support, and sometimes alimony, can be deducted from your paycheck.
As with alimony, child support must be reasonable. Enough can be too much. If the custodial parent is awarded enough child support, it may be too much for the noncustodial parent to be able to pay. If this happens, the burden becomes too heavy, and if the ties to the children and to the community are too weak, then the noncustodial parent will leave. Once a noncustodial parent has left the state, it becomes very difficult to enforce child support rulings.
In one case a woman was divorcing her vagrant husband whom she had concluded was worthless—even on his best day. As the attorney was going over the terms of the settlement in court, he got to child support and said, “Fifty dollars per month.” The judge interrupted, “Fifty dollars is not much money. Wouldn’t one-hundred dollars a month be more reasonable? I can award that if you want us to.”
The woman responded, “I wish you wouldn’t. I’m not going to get it anyway, and it only hurts half as much to not get fifty dollars a month as it would to not get one hundred a month.”
If the mother and father can agree on visitation, the court will usually approve the plan. A typical pattern is alternating weekends, a few weeks in the summer, and alternating holidays. If the parties are far apart, this pattern will not work. The pattern then calls for fewer but longer visitation periods. If the parties live very far apart, you must deal with who will provide or pay for transportation. The courts encourage visitation (and we do, too) except in very extraordinary circumstances.
Sometimes when parents fight about visitation, they are very upset about something else that they do not believe they can fight about. It may be because they feel angry at the other spouse for leaving or it may be that they feel they gave up too much in the divorce agreement. But for whatever reason, they are involved in an argument about the children. It is most often the mother wanting to restrict the father’s visitation. This is normally not a good idea, because when the mother says to the father, “I don’t want you to visit at this time,” that immediately becomes the time that the father wants to visit with the child.
Usually the problem is that the mother does not want the father to visit. In some cases the problem is that the mother wants the father to visit and he will not do it because she is trying to force him to visit with the children. The best thing to do if you do not want the father to visit is tell him you want him to visit. Bury him with visitation, offer it to him, and remember in the back of your mind that he is a free baby-sitter.
Also, you might remember that the father who visits regularly tends to be the father that pays support regularly. Note that we are using mother and father in a particular context. Many fathers have custody and are involved in similar disputes with visiting mothers. It is a battle for control—not necessarily predictable by gender.
Even if your situation is that the noncustodial parent is a jerk, and you do not think it is the best thing in the world for the kids to be around the jerk, you still need to encourage visitation. The children need to know that the noncustodial parent is a jerk, and the best way for them to know it is to let them see it with their own eyes on a regular basis.
Withholding visitation from the children or the noncustodial parent puts you against the child’s imagination. If the children do not see the jerk they soon forget what a jerk he or she is and begin to blame you for the noncustodial parent’s having left. Also, withholding visitation to coerce the payment of child support never works.
The child’s imagination is then on the other parent’s side. The children dream about a perfect parent, and since they do not see the absent parent they do not see any flaws in that parent. You might win against many things, but you will lose against your child’s imagination. A jerky former spouse is not necessarily a jerky parent. It may be hard to remember this, but they are two separate issues.
In most states grandparents can petition the court for visitation. The point is to grant that visitation if it is in the best interest of the grandchildren.
Fathers have certain rights under the law. These include the right to love and parent a child and be an influence in their lives. A father has the right to spend time with children and decide what is best for them.
However a court can limit or even terminate these rights when there is conflict over parenting issues with the mother. You can resolve conflict by agreement or by litigation. Litigation means letting the judge decide. The test that the judge uses is “best interests of the child.” What does that mean? Well, whatever the judge decides.
We find the best approach is to keep the emphasis on the child. After all, children have certain rights, too, like the right to be loved, protected and nurtured, and to have all the best that two parents can provide—that is to have both a mother and s father.
“Pendente lite” is Latin for “pending the litigation.” There are things you may need for the court to do pending the final trial. The court, upon request, can set a hearing to determine the needs and the abilities of the parties and children and order support accordingly. This award is subject to rehearing at the final trial. The court can also order custody or specific visitation pending the final trial.
Injunctions and protective orders are orders of the court that are issued to prevent harm pending further hearings. If you are afraid that your spouse will beat you, take your money out of the bank, or run off with your children, then the court can enjoin or prohibit these things by issuing an injunction.
In some cases the court will issue an injunction when the case is filed; in other cases, the court may require a hearing before deciding on issuing the injunction. If you disobey an injunction, the court can put you in jail. Even if the judge does not put you in jail, you can be fined and the judge will have a hard time trusting you later when you testify. Also, the court can refuse to hear anything you have to say if you are in contempt. The police will normally not get involved in problems between spouses, but if you show them an injunction, they will often remove the other party, and they have to act if you have a protective order.
A protective order is stronger than an injunction, but you need a more complex and expensive legal process to get a protective order. If you need protection; we will get you an injunction. However, if you feel you need the extra protection of a protective order, ask us and we will take the steps to get it issued.
In Virginia, a woman may go back to using her maiden name at any time as a matter of right. However, sometimes it is hard to convince the Social Security Administration or other entities that she has legally returned to her maiden name. A woman can have the court order the restoration of her maiden name in the final decree, even if she is not the plaintiff. Some of our clients wish to go back to their maiden name when there are no children, or go back to a former married name when there are children of that former marriage. If you want to do this, let us know.
Subject to many qualifications, alimony paid in cash is deductible to the party paying it and taxable to the party receiving it. Child support is not deductible to the party paying it or taxable to the party receiving it.
Beware of signing joint tax returns with your x2b. Although your agreement may provide that your x2b is responsible for any tax liability, the IRS can turn to you. By the time the IRS does the audit, your x2b may be bankrupt and you may be the only one left to pay the taxes.
The impact of taxes can make a great difference in divorces. Certain property transfers at the time of divorce may be tax free only to have serious tax consequences at a later time of transfer. For this reason we may bring in a certified public accountant in your case.
When you must prove something in court, you must have witnesses. If you are proving on grounds, you need to have corroboration (support) of your proof, even if your spouse is not disputing the grounds. Corroboration usually means another witness in addition to you. In a contested case you may need more witnesses. We can issue a subpoena for witnesses if you request it and give us their name and addresses. The subpoena will help the witnesses get off work to appear in court. If the witnesses do not appear in court, you cannot necessarily have the case put off until you can get them to appear in court. Your case could be dismissed.
Filing bankruptcy may relieve a debtor of many debts, but the responsibilities of paying alimony and child support are not relieved. However, if you get a notice that your spouse has filed for bankruptcy, contact us immediately. We have dealt with this problem before.
There are different types of costs in divorce cases. The largest cost is usually attorney’s fees, which is what we charge for the work we do on your case. Court costs are the fees that are charged by the court for the filing of the divorce papers and various other papers.
In contested cases, attorneys fees and court costs are higher and there may be other costs for things such as depositions, private investigators, photographs, psychological evaluations, and tax consultants. You must pay these costs, as we are ethically prohibited from lending clients money.
Any discussion about what the costs or attorneys fees will be is the roughest of estimates. There are many variables in any divorce case, including some over which we have no control. Who your spouse will hire as an attorney, how complex the financial records are, or what mood the judge is in on the day of trial will affect how we handle your case and, therefore, what it will cost you.
The emotional cost of a divorce can be greater than the dollar cost. The damage of having a broken marriage examined in court is something only those who have lived through it can understand.
The fee varies with the services you require, but it is based on the hourly rate set out in the contract you sign and it is charged in tenth of an hour or six minute units. The reason we charge in six minute units is that in order to stop doing one thing, attend to your problem, make a record of the time, and then get back to where we were usually takes at least six minutes. The charge is twice as much if you call us at home because we enjoy our quiet at home, and we do not have your files, our law books, clerks, computer, etc., to help us deal with your problem.
A basic divorce includes the initial conference; the preparation and filing of the Complaint or the review of the Complaint filed by the other spouse; the preparation of the answer; the obtaining of information from you concerning your grounds for divorce, assets, liabilities, income and expenses; the preparation of the marital dissolution agreement; the preparation or the review of a final decree of divorce including a pension distribution order or Q.D.R.O. (pronounced “quadro”) as necessary; and the attendance of one court hearing to have the case disposed of as an uncontested divorce and to submit the appropriate mailings.
Additional time is spent for telephone conferences, negotiations, telephone calls, and other court appearances. If tax planning is needed, that requires additional time and work.
If there is a trial, the economically dominant party can be ordered to pay some of the economically dependent party’s attorney’s fees. The order will rarely pay the full amount. For example, if you are the wife, you are responsible for paying the agreed fee and we will give you all credit for any payments made by your husband. You have probably heard of divorces in which the attorney representing the wife promises to collect the attorney’s fees from the husband. This creates a conflict of interest between the attorney and his client, and the attorney might be tempted to compromise the wife’s rights in other areas to protect his fee. We try to avoid this, if possible. If it appears in your best interest, we will negotiate and argue for your attorney’s fees; however, our focus will be on the total picture. Any discussion about the total cost of a divorce is only an estimate. Because we do not have control over many things such as what your spouse’s attorney may or may not do, we cannot tell you how much time your case will require. Frequently the party who provokes the divorce ends up paying not only their own fees but also some portion of the other party’s.
We require a retainer to accept your case and to begin drawing up the necessary papers. If you decide not to retain us, you will only be charged for the office conference. If you retain us, you will sign a contract setting out the terms of representation in writing.
If there ever was a conflict of interest, it has to be two people getting a divorce. In Virginia it is not legal for an attorney to represent both parties in a divorce. If you and your spouse have agreed on everything, it may be possible for us to do all the legal work, but we can represent only one of you. Your spouse should see a separate lawyer for advice. If you and your spouse disagree later, we can still only represent the person we started with.
We must have all the facts to represent you properly. Tell us everything you know: “My husband took a trip out of town—here is a copy of the ticket.” Tell us what you suspect: “I bet he met his girlfriend down there.” Something that may not seem important to you may be critical to your case. If you get on the stand and the other side knows something that we do not, the information could be used against you, and we would be unprepared and unable to defend you against it. However, if you give us the information, no matter how bad it may appear, then we can take the proper steps to prepare a defense to avert what could otherwise turn out to be a disaster.
Anything you tell anyone in this office is strictly confidential and will not be disclosed without your permission.
Do not discuss your case with anyone unless you have our permission. One of the best ways for the opposition to trip you up is to get a statement you made before trial especially to so called “mutual friends” that does not coincide exactly with your testimony at trial.
Do not sign anything involving this case unless you have approval from us. You may be signing something that could harm you later on.
Furnish us immediately with the names, addresses, and telephone numbers of any and all witnesses, and tell us what they know. Advise us immediately if you hear of anything that might affect your case. If we are not in, you may leave this information with our secretary.
Never lie or withhold information from your attorney.
All papers filed in your case and all testimony in your case are theoretically matters of public record, and the public has a right to see or hear it. However, the only people you are likely to see at court are other people who are getting divorced themselves that day, and they are far more concerned with their own problems than with your case.
You will receive copies of many of the documents that were prepared or received by us. Due to court appearances, calls, depositions, negotiations, and other commitments, we are difficult to reach on the telephone, and you may talk to our legal assistant about your problems. She will be easy to reach and can give you information or take messages. She cannot answer your legal questions, but she can relay them to us and get back to you with our answers. Try to work with her. It will make things easier and it will hold down the cost of your divorce, since we bill for her time at a much lower rate. Note—each good tearful cry to us costs you about $50.00 in legal charges. You are encouraged to avoid excessive calls, and to make notes before you call so we don’t go off on expensive tangents. Almost always some time spent with a therapist for someone going through a divorce is very valuable.
We expect you to be cooperative and truthful. If you are not, we will not represent you. We also expect you to handle your financial commitments to our office in a prompt and businesslike manner. Please notify us of any change of address or telephone number or of any new information that may affect your case.
If you have not done so already, start looking for evidence. Check desk drawers, safety-deposit boxes, bank boxes, or other places where documents might be hidden. It is a good time to visit with your family banker, stockbroker, or accountant to discuss the family financial situation, although you may not want to tell them about the divorce. We will want you to supply us with copies of the following documents:
Income tax returns
These are most often filed when borrowing money and are very important.
Any explanations of benefits from you or your spouse’s work.
Canceled checks and charge records.
Include IRAs, 401(k), etc.
Real estate tax bills or appraisals
Including life insurance, medical insurance, health insurance, or homeowners’ insurance.
Bank accounts and bank statements
Safety-deposit boxes. You will want the bank to verify an inventory if possible
Partnership agreements, corporate records
Documents showing any business interests.
Any inheritance or trust interests
Wills by you or your spouse
Any written agreements or notes between you and your spouse
Any other evidence you have such as photographs or letters
Your well-meaning family and friends may offer you advice about your case. Frequently such advice is not accurate, and you should be cautious in following it. The facts surrounding your marriage, divorce, children, and property are unique and are different from any other case. The only thing your divorce and your Aunt Harriet’s divorce may have in common may be that you and your Aunt Harriet are related to each other.
In an uncontested divorce case, the plaintiff needs to appear in court to testify. The defendant need only appear if it is what he or she wants to do so. You will need to bring a witness with you to testify on your grounds for divorce. You may want us to issue a subpoena to require your witnesses to appear in court. The subpoena helps your witnesses get off work and protects you if they do not appear.
Dress neatly, modestly and nicely for all court appearances, especially those in which you will be testifying. It is unfortunate that people judge other people by the clothes they wear, but they do. If you want the judge to think you are one of the “good guys,’ then dress like a good guy. Women should wear little or no makeup or jewelry. Men should wear suits and ties.
Do not chew gum or smoke. Walk and stand erect. Do not slouch in the witness stand or slur your words. Be serious and forceful. Do not cover your mouth or avert your eyes.
Look at the judge when you talk. Remember, you are trying to convince the judge. So talk to him or her and not to us, because we already believe you, and don’t talk to the other attorney, because he or she will never believe you. Do not look at us before you answer the question as if you are seeking help or after you answer the question as if you are seeking approval.
Be polite; it makes a good impression on the court. Answer “Yes sir” or “Madam” and address the judge as “your honor.” Do not be a smart-aleck, or appear nervous, scared, argumentative, or angry. If the other side baits you into becoming angry, it is probably trying to set you up for a trap, so keep your cool. Lose your temper, and you may lose your case.
Tell the truth. It is going to come out eventually anyway, and it is better coming from you than from the other side. If the other side catches you in a lie you may lose your case. However, make sure you told the truth to us before you tell it in court.
Listen carefully to all questions, whether posed by us or by the other side. Pause, make sure you understand the question, then take your time and answer that question. You cannot give a truthful and accurate answer if you do not understand the question. If you ask the attorney will repeat the question. Do not tell the court “I think” or what it “must have been.” The court does not normally care what you think or what could have happened. It wants to know what actually happened. However, if you estimate a time or a cost, make sure the court knows it is an estimate. If you make a mistake during your testimony, correct it as soon as possible. Politely say something such as, “May I correct something I said earlier?” When the other side asks you a question you do not know the answer to, say “I do not know.” Witnesses are often trapped by being led into areas about which their knowledge is inadequate. They try to save face and end up making a statement that is incorrect. This gives the other side what it needs to shoot them down. You can usually avoid the problem by saying “I do not know.” In cross-examinations most questions can be answered with “yes,” “no,” “I do not know,” or with a simple sentence. Do not ever use “Watergate” words. Everybody in the United States believed the witnesses at the Watergate hearing were lying. So when you say “To the best of my recollection,” people think you are getting ready to lie to them. Do not volunteer information. Do not let the other attorney pull you into testifying more than you need to by standing there looking at you, waiting for you to add material. When you are finished with your answer, shut up. One of the oldest tricks in the book is for the other side to ask you if you have discussed the case with your attorney or other witnesses. If the other sides asks you, then tell the truth—you have. The other side is not asking you if you have fabricated the story, but it is asking you if you have talked about it. Only a fool would go to court without having discussed the case with his or her attorney and his or her witnesses. If the other side asks you if we have told you what to say, say that we told you to tell the truth—because we have. Do not let the other side trick you by asking you if you are willing to swear to what you are saying. You already did when you took the oath as a witness. We are all afraid of things we do not understand. To help yourself, you will want to review any documents you will refer to during your testimony. Also, review any statement you made, and talk to friends, family, or coworkers to recall details you have forgotten. A visit to the court before your case may make you more comfortable about your court appearance. After you watch a few cases, you will see that no one dies or is seriously injured when testifying. You will feel better when it is your turn. Always check with our office a couple of days before court to make sure your case will be heard. Often cases are continued by the court for one reason or another, and we do not want you to waste a trip if it is avoidable.
If there is no appeal, your divorce will be final thirty days after the judge signs the final decree.
Oscar Wilde described remarriages as the “triumph of hope over experience.” We prefer the term “subsequent marriage.” You may not marry anyone except your spouse for thirty days after the final decree of divorce. If you do marry again, you may want a prenuptial agreement (also called premarital or antenuptial agreement). We recommend them highly. This is an agreement with your new spouse to be made before the marriage. Like health insurance, car insurance, or property insurance it protects you in the event of a calamity. And the divorce rate for subsequent marriages is even higher. If you are interested in this, ask us. It can help you avoid problems in your next marriage. Odds are high that you will marry again.
It is very important that you keep records of payments you make or receive for alimony and child support. If you are paying, pay by check and keep all canceled checks. If you cannot prove you paid it, you might as well have not paid it. If you are receiving payments, keep a running account in a permanent place. If you cannot prove what you did get, the court might not believe you when you testify about what you did not get. It is easier for both parties to have payments deducted from the paycheck of the person who is paying. We strongly recommend this.
If you and your spouse or ex-spouse agree to change the terms of a court order (Temporary Support Order, Final Decree, or what have you) you must change it with another order. If your spouse says, “You don’t have to pay alimony for the next year if you will take the children to Disneyland this summer,” you must get it in writing and entered in court for it to be binding on your spouse and to protect you from contempt. If you need to change child support or certain types of alimony, you can petition the court for a change. If you show a change of circumstances, then the court may modify those provisions. The change of circumstances that most impress the court are those changes that you do not expect: “I lost my job because the company went bankrupt. “The courts are less sympathetic to “I just don’t want to work as hard as I used to work.” Sometimes changes that everybody knew were coming are not a change of circumstances: “When my children became teenagers, they were so much more expensive.” This should have been anticipated.
You probably need a new will now. Even though you are separated, if you were to die your spouse would still inherit unless you have executed a new will providing otherwise. If you wish to pursue this, please ask us. If you have given your spouse a power of attorney, cancel it as soon as possible. Until you do, your spouse has control over your property and can sell it or give it away.
The Omnibus Crime Control and Safe Street Act of 1968 makes it a federal crime and a civil tort for anyone to listen in on a telephone conversation or to record any conversation if they are not a party to that conversation or do not have permission from someone who is a party. Such recordings are not admissible as evidence. If you record your spouse’s conversation with his or her “lover,” you cannot use that tape in court and you could end up in a federal prison.
In Virginia it is lawful for a person to record a telephone conversation or other conversation in which one of the parties to the communication has not given prior consent to record it.Virginia is a “one party consent” state—but don’t risk it.
One former spouse was awarded thousands from the other spouse on a suit for invasion of privacy. That’s why an answering machine is a good idea—the caller knows they’re being taped and by speaking gives permission.
Human beings, among all the animals of the earth, have a unique ability for worry. Even during good times people find things to worry about. When going through a divorce, you will find many things to worry about, and you will have good reason to worry. Even if we tell you not to worry, you will worry. Let us suggest that instead of worrying about your problems, you worry at your problems. Instead of letting your mind be consumed with worrying about how bad the situation is, you should concern yourself with what you can do to solve the problems. Outline problems in writing prior to calling us to ventilate. It helps you to focus clearly. Then destroy these notes.
If you are going through a divorce and you feel uncertain, insecure, or depressed, then you have a fairly normal problem. You may want some counseling for the problem. If you are going through a divorce and you feel no uncertainty, insecurity, or depression, then you probably have big problem. You should get professional help immediately.
After the divorce you and your ex-spouse will have two separate households. You will have to maintain those two homes on the money with which you maintained one earlier. “Two” cannot live as cheaply as “one”, especially when “two” are two separate households.
Furthermore, if your x2b has been a jerk all of his or her life, it is very unlikely that going through a divorce will make him or her less of a jerk. A drunken wastrel will probably continue to be a drunken wastrel, and nothing we nor the court can do will be likely to cure the problem.
After the divorce, you will be separated, but connected by visitation, child support, alimony or debt payments, and you will still have to deal with the problems together.
If your x2b is difficult, then no matter how hard we tried or how well we succeed, your x2b will probably still be difficult.
Sometimes people get into big fights over small things.
One couple tried to get divorced, the case went to court, the matter was tried, and the case was so impossible the judge threw it out of court. The parties had to work out a settlement if they were going to get divorced at all. With the help of their very expensive attorneys, and after much yelling and fighting, they had sold their house, set alimony, sorted out custody, and agreed to child support. They got down to dividing the contents of the house, and as they were about to finish they came upon seven crystal goblets.
The wife said, “I want four and you can have three so that our two children and my dear mother can come over for dinner and discuss the problems you have left us with.” The husband responded, “I’ll take the four goblets and you can have three so that we can have my two children over for dinner along with my girlfriend, and the children can see how a man and a woman who love each other behave.” The yelling and screaming began again. One of the attorneys had all that he could take. He grabbed a goblet, threw it into the fireplace, and shattered it. He said, “Now you each have three and you can bill me for the broken one.”
That ended the case and it also ends this information about divorce in Virginia.