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 need enforced. 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 plenty of … Read More »
In Virginia, a spouse who spends or disposes of marital property for an improper purpose (a) anticipating a separation or divorce or (b) after the final separation of the parties may have committed “marital waste.” The court has the authority to consider such behavior in making an equitable distribution award.
Marital waste (or “dissipation of assets”) typically occurs when one party transfers funds out of a marital account or otherwise misuses marital funds after the marriage begins deteriorating. The aggrieved spouse must only show that the funds were withdrawn or used by the other spouse. The burden of proof then shifts to the alleged wrongdoer to prove by a preponderance of the evidence that the funds were spent on a proper purpose. It should be noted that Virginia courts have held that spending money on living expenses post-separation does not usually constitute … Read More »
So, you think, or you know, that your spouse is cheating on you. As devastating as this discovery can be, many people are just as devastated to find out that Virginia law can, and often does, protect the adulterer.
In Virginia, adultery is defined as the act of sexual intercourse by a married person with any person who is not their spouse. It is a ground for divorce under Virginia Code § 20-91. It is also illegal, a Class 4 misdemeanor according to Virginia Code § 18.2-365. While adultery as a crime is rarely, if ever, prosecuted, the fact that adultery is still technically illegal in Virginia has a significant impact on many divorce cases.
For a court to grant a divorce on the ground of adultery, Virginia law requires proof by “clear and convincing” evidence, a higher standard of proof than other grounds … Read More »
The National Defense Authorization Act (NDAA) for 2017, signed into law in December 2016, drastically changes the way military retired pay can be divided in divorce cases. The new NDAA made major changes to the Uniformed Services Former Spouse Protection Act (USFSPA), which is the federal law enacted in 1982 that allowed states to divide military retired pay as marital property in divorce.
The original USFSPA did not provide for any particular division of a servicemember’s military retired pay. Rather, each state was able to develop methods of dividing military retired pay based on their existing state laws concerning division of property in divorce.
Virginia, as an equitable distribution state, awarded a former spouse a portion of the “marital share” of the servicemember’s retired pay. The marital share was a fraction of the total retired pay, with the numerator being the creditable service … Read More »
Divorce is an emotional and overwhelming time in a person’s life. If you do not enter the divorce with the necessary financial information, the process may be even more overwhelming than anticipated. By taking certain actions at the start of the divorce process, you can protect yourself from future surprises, and potentially avoid a great deal of stress later on. Here are four financial steps you should consider taking before divorce:
1. Obtain Financial Documents
If you do not keep good financial records or have limited to no access to your financial documents, now would be the time to gather and retain copies of these documents. These documents should include: tax returns, checking, savings, and bank statements; investment statements, retirement account statements, and other documents that address any sources of your or your spouse’s income. Try to gather all of these financial documents for the last three to … Read More »
Are you separated from your spouse, or otherwise undergoing marital difficulties? If so, you may find yourself wondering whether your spouse can disinherit you. In Virginia, the short answer is no. Virginia law protects surviving spouses from being disinherited by allowing the surviving spouse to claim an “elective share” of the decedent’s estate if the decedent died without a will, if the spouse is omitted from the will, and even if the decedent explicitly disinherited the surviving spouse in the will. The right to an elective share continues even where the parties are separated or pending divorce, until a divorce is final.
What Are You Entitled to Under the Elective Share?
The answer to this question is going to change for decedents dying on or after January 1, 2017, based on some 2016 revisions to the Virginia Code.
For decedents dying before January … Read More »
Desertion v. Separation in Virginia
Virginia Code § 20-91 provides for divorce on either fault-based grounds or no-fault grounds in Virginia. The grounds for divorce listed there include, among others, both (a) the fault-based ground of willful desertion or abandonment, after one year and (b) the no-fault ground of living separate and apart without any cohabitation and without interruption for one year. The separation period for a no-fault divorce is shortened to six months where the parties have entered into a separation agreement and have no minor children.
All of which leads to this common question: how does one live “separate and apart” to qualify for a no-fault divorce, without being found guilty of willful desertion or abandonment?
Virginia courts distinguish desertion from mere separation by looking at the specific behavior of the parties. Courts have consistently found that one party moving out of the marital bedroom … Read More »
Virginia law allows for divorce based on both fault-based and “no-fault” grounds. The fault-based grounds include desertion (actual or “constructive”), adultery, desertion (actual or “constructive”), and felony conviction and confinement in excess of one year. In deciding which ground to file on, it is wise to start by considering the pros and cons of filing for divorce based on a fault-based ground in Virginia.
Advantages to Filing for Divorce Based on Fault
Unlike a “no-fault” divorce, if you decide to file for divorce based on fault, there is no statutorily mandated waiting period for filing. Many individuals who want to get the ball rolling on their divorce may choose to proceed based on fault (assuming it is applicable in their case). This advantage to a fault-based divorce is especially important in those cases where one spouse needs immediate, temporary child support or spousal support … Read More »