What are the Grounds for Divorce?
A. “No Fault” divorce (Generally a 12 month separation, six months with a complete Separation Agreement and no children)
B. Mental Cruelty
C. Adultery, sodomy or buggery committed outside of the marriage
D. Desertion/Constructive Desertion
E. Conviction of a Felony
When are you “Legally Separated”?
You are separated when you are not cohabiting as husband and wife (not living under the same roof, or you are physically separated under the same roof). A separation can start when the parties are living in the same house but in separate bedrooms. There also must be an intention of one or both parties that the separation is permanent. Nothing needs to be “filed” to begin the separation period.
The following is a checklist you should use to comply with separation under the same roof:
Establish and maintain an intent to separate – permanently or indefinitely
No romantic or sexual intimacy
Stop wearing wedding rings
Each spouse shops for themselves
If awaiting custody, both can shop for children
Do not use other spouse’s food or other purchases
Do not eat meals together (exceptions holidays or children’s birthdays)
Each spouse is responsible for caring for his or her own space within the home, such as bedroom
Each does own laundry
Establish separate checking accounts
Cease socializing (do not attend parties, movies, etc. together)
Do not attend church together
Where there are minor children, even if awaiting custody, interact as parents only where strictly necessary for the childrens’ well-being, e.g., parents may go together to a meeting with a school official regarding problems of a particular child, but not ride together and sit together at a child’s school play or soccer game
Cease spouse gift-giving for birthday, Christmas, anniversary, Valentine’s Day, etc.
Tell close associates, relatives, etc., that though under the same roof, you are separate within the residence while awaiting divorce/custody hearings
Have a third party come to the home occasionally to observe the two spouses’ separate and distinct living quarters (bedroom, bathrooms, etc.)
Utilize separate entrances to residence if feasible
Be prepared to explain reason(s) for effecting separation under same roof (e.g., financial considerations, to ease children’s transition to parental separation, etc.)
What Is a Separation and Property Settlement Agreement?
This is a written contract signed by both parties. All of the issues of the marriage are agreed upon, namely: custody, visitation (also known as “parenting time”), child support, health insurance, debts, distribution of real estate, personal property, whether tangible assets (household items, furniture, cars, etc.) or intangible assets (securities), retirement accounts, other financial accounts and pensions, etc. When you have completed the Separation Agreement, you have completed the most costly part of the divorce process. Partial Separation Agreements are oftentimes advisable when you cannot reach a complete agreement as the more you limit your issues, the more you reduce your cost, both financially and emotionally. The only issues that may be modified, if circumstances change, are those dealing with the children, as well as spousal support if not waived.
The initial divorce pleading is called the “Complaint. The other party has 21 days to answer your allegations and file their own divorce pleading, a “Counterclaim“. Thereafter, counsel for both parties will gather needed information called “Discovery” by using: Interrogatories, Request for Production of Documents, Request for Admissions of certain statements and facts, depositions of the parties or witnesses, and subpoenas duces tecum ordering a custodian of records to send information.
At the end of the discovery process, the parties should know enough about the financial situation and position of the other party to negotiate an agreement, mediate, or proceed to court for a contested hearing.
What is an Uncontested Divorce?
If a Separation Agreement is signed, then on the anniversary of twelve months (six months if no children and the Separation Agreement is signed), the parties can proceed to finalize the divorce in an uncontested manner. The wife or the husband may finalize the divorce by Affidavits with no need for anyone to appear in Court.
What is a Contested Divorce?
This is when the parties do NOT have an agreement. The good news is that nearly an all cases settle, even though they were awful in the beginning of the case. Mediation and judicial settlement conferences before retired judges have been very successful. A mediator has no power to make rulings about your case, but a mediator’s role is solely to try to help the parties reach a compromise. Mediation is definitely a good idea but only with legal counsel.
Sometimes agreements are written by mediators, but they are frequently difficult to enforce .
When can I start dating?
The short answer is that it depends on the facts of your case. Dating which leads to romantic involvement and a sexual relationship is adultery. Adultery can affect spousal support and the division of marital assets.
If you are involved in a relationship, tell me, as it may hurt your case.
When can I leave home?
If you agree that the marriage is over and one of you should leave, I recommend that a written agreement be signed by both parties so that there is no accusation later of desertion or abandonment. It is best for me to draft the agreement. The bottom line is that you need to discuss your case with me before moving out because how and when to do it very much depends on the facts of your case.
How much will the divorce cost?
The more you fight, the more a divorce costs. It’s hard to do, but if you can negotiate and resolve the issues in a calm, cool, collected, business-like fashion, you will save money and heartache.
Can one attorney represent both parties if they seem to be in agreement as to most things?
No, unless that attorney is a mediator. Too often, I have had people come to me desiring to “undue” an agreement that has been made. It Is highly unlikely that a court will set aside an agreement, so never sign anything or agree to anything without consulting an experienced attorney.
Can I get a divorce if my spouse does not want one?
Yes. But, if the other party ‘s not in agreement, the case may take longer and can be highly contested.
Who pays for a divorce?
Generally, if you reach an agreement without an undue amount of court activity, the parties will each pay their own fees. Under Virginia law, the court can award attorney’s fees to either party -either early on at the preliminary stage of the proceeding, or by reservation for hearing after the conclusion of the divorce. The disparity in the parties’ incomes and the award of spousal support to one party will at times lead to attorney’s fees be awarded by the support paying party. The court will also consider the reasonableness of the parties’ positions during the litigation, so if one party abuses the system by increasing costs or creating delays in the process, the court will likely award the innocent party some portion of their attorney’s fees. I have had awards granted for virtually all attorney’s fees, when the other party has behaved badly.
Should I communicate with my spouse during a divorce?
If you can communicate in a business-like fashion, and it will benefit the both of you, then communication is beneficial. However, if you have nothing positive to say or cannot communicate in a civil manner, then communication should be eliminated or certainly not done in the heat of anger. Time and time again, I have seen where a person who has lost self-control has had to pay the price, either economically or in future relationships with their former spouse or children. If verbal communication is not possible, we often draft Orders that only allow e-mail communication between the parties. This generally keeps matters business-like. If one party resorts to name calling or degrading the other party, then the e-mail can be used as evidence against the other. In a nutshell, “If you don’t have anything nice to say, say nothing at all,” is often the best advice.
Can my e-mails and Facebook page be used against me In court?
Yes. False Information, photos of a person engaging in irresponsible, vulgar or threatening behavior is very much relevant, especially in child custody cases. Even if you are not going through a divorce, it makes sense to put your Facebook on the most private setting and to delete old status updates frequently. Realize also that “friends” may become former friends, and they can provide Information to be used against you. If you would not want your mother or father to see what’s published, and you wouldn’t want the general public to see it flashed on the 6:00 p.m. news, then it’s best not to post it on Facebook. This goes for bloggIng as well. Don’t say or do anything that would be embarrassing to you if it were brought before the Court.
Free Initial Consultation
638 Independence Pkwy, Suite 240
Chesapeake, VA 23320