My last post said that when a spouse needs child support or custody relief in the first post-separation year in Virginia, the choices are filing a petition requesting custody and/or support relief in Juvenile & Domestic Relations Court (hereinafter “JDR”), asserting fault grounds in a complaint for divorce from bed and board and for the custody and/or support relief in Circuit Court, or waiting one year from separation to file a complaint in Circuit Court for final divorce (called divorce a vincula matrimonii) on separation grounds and for the custody and/or support relief.
JDR is structured to be friendly to the self-represented. There are forms for most pleadings, the clerk’s office schedules the hearings and hearings are relatively informal. However, dockets are crowded and relief is not as speedy as in Circuit Court where you can be before a judge for temporary relief in 21 days. Also, either party can appeal to the Circuit Court and have the entire case reheard. The Circuit Court does not just review the record of what happened in JDR (there is no actual record), the Circuit Court rehears the entire case. In general, the unsatisfied party simply has to file a notice and pay an appeal fee. So when you prevail in JDR it often only means you won round one. And if you had an opportunity to start in Circuit Court instead, it was an unnecessary and inconclusive round one – a waste of time and money.
When you have evidence of clear fault grounds – adultery, physical cruelty, actual abandonment – the choice of where to file is a no-brainer. You file for divorce in Circuit Court and seek the additional custody and/or support relief. But this discussion is about choices so it concerns those cases where the evidence or the fault is less than clear. The advantages of a Circuit Court suit must be weighed against the downside risks. These include, for example, possible harm to the parenting relationship, the general ratcheting up of conflict, costs and attorney’s fees that often result from an accusation of fault, and the loss of credibility with the court if there is a failure of proof. In this weighing, one must also consider how important it is to be in the Circuit Court and how important it is to get into court now rather than wait out the year.
That is the third choice a party can make in this situation – wait one year, then file for divorce on one year separation grounds. This is what is often done. Because, of course, the choice is not between going to court now or doing nothing for one year. In the meantime there are negotiations with your spouse, getting the time-sharing schedule set by action and discussions, dividing accounts by self-help – just take your half, and dealing with many other issues. Often the important work of separating your affairs, dividing property and debt, and settling how to raise the children post-divorce is worked out during that first post-separation year, resulting in a Marital Settlement Agreement that resolves all issues. And if you agree on less than all, you can bring a complaint for divorce on one year separation grounds in Circuit Court and ask the judge to grant your divorce and decide the remaining support, custody or property issues.