FrequenlyAsked Questions in Family Law:

What are the Grounds for Divorce?

A. A "No Fault" divorce is a twelve month separation or six months if there are no minor children and a separation agreement is signed.

B. Mental Cruelty

C. Adultery

D. Desertion/Constructive Desertion

E. Conviction of a Felony

When are You "Legally Separated"?

The moment you are not cohabitating as husband and wife, generally not living under the same roof, or physically separated.  There also has to be an intention of one or both parties that the separation is permanent. (Nothing needs to be "filed", as most people seem to believe, to start the period of separation).

What is a Separation and Property Settlement Agreement?

This is a contract, in writing, and signed by both parties, in which all of the issues of the marriage are agreed including duties and obligations in reference to children, if any, (custody, child support, health insurance, etc.), debts, distribution of real estate, personal property, whether tangible assets (household items, furniture, cars, etc.) or intangible assets  (securities). The second the Agreement is signed you have basically written your own Divorce Decree or Order. (Rather than having a judge do it for you!) The only issues that can be modified, if circumstances change, are those having to do with the children, such as custody, visitation, and child support, as well as spousal support.

Describe the Legal Process of Divorce and How Long it Takes.

A detailed answer would be too lengthy, but in general, what starts the divorce is a document which is the initial divorce pleading called the "Bill of Complaint". The other party has twenty-one days to answer and to file their own divorce pleading, a Cross-Bill of Complaint.  Thereafter, counsel for both parties will engage in various discovery procedures including: interrogatories, request for production of certain documents, request for admissions of certain statements, depositions of the parties or witnesses and subpoenas duces tecum (ordering the custodian of certain records to send copies to the party requesting them).

At the end of the discovery process the parties should know enough about the financial situation and attitude of the other side to negotiate an agreement.  Financial information can also be done voluntarily, of course.

What is a "No Fault" (Uncontested) Divorce?

If an agreement is achieved, on the anniversary of twelve months (six, if no children), the parties can proceed to finalize the divorce in an uncontested manner.  The commissioners hear divorces in most Tidewater cities and their fees are approximately $100.00.  You will need to take a corroborating witness for a very short hearing after which the commissioner files a report recommending to the Circuit Court Judge that the divorce be granted and under what conditions.  One of the attorneys will draft the Divorce Decree based on the commissioner's report and after both lawyers sign it, the judge will enter it and it is at this point that the parties are divorced. (The court can also hear uncontested divorce cases and the procedure is somewhat different.) (This type of divorce is what people refer to as based on the grounds of  "irreconcilable differences".)

(People seem to be very confused about who signs the Divorce Decree as they believe that they must personally sign it.  This is not so unless the are unrepresented by an attorney or pro se.)

What is a "Contested Divorce"?

This is when the parties do NOT have an agreement.  It has been my experience that at least 95% of all divorce cases, no matter how horrible they are in the beginning, end up with an agreement before the end. If there is no agreement, the case becomes much more expensive and the commissioner's fees are $100.00 an hour with an additional $200.00 flat fee at the beginning of the hearing. You also have to pay for the appearance of a court reporter and full payment of the transcripts of the proceedings. After the Commissioner makes his recommendations either or both parties may want to "except" or "object" to the recommendations and that will require a non-evidentiary hearing (no more testimony or evidence is to be submitted) and an argument about the validity of the commissioner's recommendations under the law.  After the exceptions hearing one of the attorneys will draft a more lengthy Divorce Decree than in the uncontested divorce. As of November 2004, the judges in Virginia Beach Circuit Court will start hearing contested cases. This will be a somewhat less expensive process as no Commissioner's fees will be paid.

When Can I Start Dating?

This is a question that needs to be answered on a case by case basis.  Obviously, if you are not divorced, dating which leads to romantic involvement and a sexual relationship is (technically) adultery. If you are found guilty of adultery you may not receive spousal support.  If you are in the middle of a custody battle, being involved in an adulterous relationship may not be viewed as beneficial to the children and could affect your custody case. Recently, the case law suggests that adultery may cause a division of the martial assets less favorable to the guilty spouse. However, this is something that needs to be discussed with an attorney before an appropriate answer can be given.

When Can I Leave Home?

If you agree that the marriage is over and one of you should leave, there should be no problem.  However, I recommend that a written agreement be signed by both parties so that there is no accusation later of desertion or abandonment. Another reason why one person may leave the marital residence, for instance, is if the other party is having an adulterous affair.  Since you do not know whether your actions will constitute desertion or not and what to do to prevent that charge leveled at you or whether desertion will, in fact, affect you, you need to discuss your particular case with an attorney.

How Much Will the Divorce Cost?

There is no clear answer to that except "it depends". It depends on the following: who the other attorney is, and how difficult he or she may make the case; how carefully you use my time and are able to understand that some communications should be properly made to your therapist or physician or a good friend rather than to me and my office; how reasonable or unreasonable you and the other party are; how quickly you can learn to look at divorce as a "business situation" and therefore be able to work out a fair and reasonable separation and property settlement agreement, and most importantly, how focused both parents are on the best interests of the children.

Can One Attorney Represent Both Parties If They Seem To Be In Agreement As To Most Things?

Absolutely not, unless that attorney is a mediator. Otherwise, do not let your spouse take you to his or her attorney's office saying that the attorney has agreed to represent you both. We are ethically forbidden from doing that, as we can only "serve one master".

What is a Divorce Mediator?

This is an attorney, or other professional, that is trained in mediating conflict. They do not tell you what to do, they simply create a structure wherein you and your spouse can communicate effectively and come to a meeting of the minds as to an agreement. (I am also a mediator.  If you would like information on the mediation process email a request or call my office).