A contested divorce or custody battle is one of the most stressful and emotional times in a person’s life. If you suspect a cheating spouse or are concerned for the welfare of your children, you may go to any length to gather evidence to prove your suspicions. You may be tempted to break into your spouse’s emails or social media accounts, record their communications, or use surveillance to track their movements. However, it is best to seek legal advice and proceed with caution so that you do not unwittingly break the law, and expose yourself to criminal and financial consequences. Furthermore, evidence you obtain unlawfully may be excluded as evidence—making its gathering not worth the risk in many cases.
Intercepting Your Spouse’s Emails and Conversations
The Interception of Wire, Electronic or Oral Communications Act, found in Virginia Code § 19.2-61 through § 19.2-70.3, governs the legality of … Read More »
Virginia is an “equitable distribution state,” which means that in any divorce proceeding, a circuit court is permitted to classify parties’ properties and debts as either separate property, marital property, or a hybrid property (consisting of both separate property and marital property funds). Once the circuit court classifies the parties’ properties and debts, then the court is authorized under Virginia law to divide these assets and debts accordingly.
One such type of marital asset that a Virginia circuit court will divide is any retirement accounts titled in either party’s name. In Virginia, the division of a retirement account shall not exceed fifty percent (50%) of the marital share. Under Virginia law, the marital share is is defined as the portion of the total interest that was earned during the marriage until the parties’ date of separation.
What Types of Retirement Accounts are … Read More »
The financial consequences of divorce may have lasting effects on a party’s monetary stability for years following the conclusion of the case. Virginia is an equitable distribution jurisdiction, meaning that in any divorce proceeding, the circuit court has the authority to classify the property of the parties as separate, marital or hybrid. The court then uses this designation when distributing the debts and property of the parties. Pursuant to Virginia’s equitable distribution statute, Virginia Code § 20-107.3, the court must consider all debts and property belonging to the parties, which includes all real, personal, tangible and intangible property.
While Virginia’s equitable distribution statute is intended to create a fair system for the division of property and debt, it may have unintended results for parties involved in a divorce who either entered the marriage with student loan debt or acquired student loan debt … Read More »
Under Virginia law, a separation agreement might be “incorporated” into the parties’ final order of divorce. The circuit court granting the divorce has broad discretion to incorporate all, some or none of the provisions of the parties’ separation agreement. So, what does it mean to incorporate an agreement (in whole or in part) into a final order of divorce, and what happens if the court does not incorporate the agreement into the order?
Contract vs. Court Order
To begin answering those questions, let’s step back and ask: what is the difference between a private contract and a court order? A court order permits the trial court to enforce the order via the contempt powers of the court. A contract, on the other hand, can merely be enforced as a private agreement between two parties. Common remedies for breach of contract are relief in … Read More »
An action for divorce in Virginia commences with the filing of a complaint for divorce by one spouse (the plaintiff) against his or her spouse (the defendant) in the appropriate circuit court. Once the complaint and summons are served on the defendant, he/she has 21 days to answer the complaint. The defendant’s answer may consist of denials and admissions to the plaintiff’s allegations and may include the pleading of other facts—providing their side of the story. The defendant may raise any and all defenses to the plaintiff’s alleged ground for divorce and even file a counter-claim against the plaintiff seeking similar relief.
In Virginia, a divorce can be filed on fault-based or “no-fault” grounds. The fault-based grounds include adultery, cruelty and desertion. The no-fault ground is (1) separation for at least twelve months or (2) separation for at least six months, with a separation agreement … Read More »
Contested divorce cases can be extremely costly. The costs are often driven up by an aggressive opposing party or counsel, or through multiple actions being heard at the same time, sometimes even in different courts. If you find yourself in such a situation, you may not be able to completely prevent costs from rising. However, there are some steps you can take to help keep your attorney’s fees as low as possible. Here are three tips for keeping costs down in your divorce:
Consolidate communications with your attorney. Communication between you and your attorney will be essential in your divorce. However, in many cases a client will both telephone and email their attorney several times in the course of a day. Costs can add up quickly if you do not do your part to make each communication efficient and meaningful. If time permits, … Read More »
Many family law clients ask the same question during their initial consultation: “which court should I file in?” In Virginia, both the juvenile and domestic relations district court (“J&DR court”) and the circuit court handle family law cases. The J&DR court has the power to hear matters concerning custody, visitation, child support, and spousal support. The circuit court can hear all of the same issues, in addition to divorce and equitable distribution.
Unmarried couples with children must file in the J&DR court for custody, visitation, and child support to be determined. For couples who are divorcing, there are factual, procedural, and strategic considerations that come into play when determining which court to start in. Generally speaking, if one of the parties has grounds for a divorce, it may make more sense to begin the matter in circuit court, but this is … Read More »
If you do not know the whereabouts of your spouse, it is still possible to proceed with a divorce. Because each party in a divorce must have notice of any claims asserted against them, an absent spouse becomes an issue for purposes of service, which is the process by which parties to a case are provided with notice of the legal proceedings. In these cases, notice can be provided by using “service by publication.” Service by publication is the method of publishing an order, which acts as sufficient notice of the divorce proceedings to the spouse whose location cannot be found.
There are several potential issues with service by publication that you should be aware of if you intend to use this method in your divorce case.
First, service by publication is only to be used when one spouse truly has no … Read More »
It is not uncommon for people undergoing divorce to approach their attorneys with a laundry list of terms regarding their children that they would like included in their separation agreement, or for people who already divorced to approach attorneys with child-related terms of an existing separation agreement which they want to enforce. What many people are surprised to hear is that some of those terms which they would like included, or some of the terms that may already be in their agreement, are actually unenforceable under Virginia law.
The first thing to understand in this area is that provisions in agreements regarding child custody, visitation and child support are always modifiable based upon a material change in circumstances. Always! So, any provision in an agreement which indefinitely prohibits the modification of custody, visitation or child support would be unenforceable.
Secondly, there are … Read More »
In Virginia, a spouse who misuses or deliberately disposes of marital property to purposefully deprive the other spouse of their share upon divorce has committed “marital waste” or “dissipation of assets.” The court has the authority to consider such behavior in making an equitable distribution award.
But how does the court know when marital waste was purposeful? The general rule in Virginia, stated in Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569 (1988), is that “waste may be generally characterized as the dissipation of marital funds in anticipation of divorce or separation for a purpose unrelated to the marriage and in derogation of the marital relationship at a time when the marriage was in jeopardy” (emphasis added).
Marital waste typically occurs when one party transfers funds out of a marital account or otherwise misuses marital funds after the marriage begins deteriorating. … Read More »