Virginia Divorce: Fault or No Fault Grounds
Virginia law provides several different grounds of divore. If you are considering divorce, it is important that you understand these grounds of divorce, and what you have to prove in order to finalize your divorce.
Virginia law requires you to satisfy one of several different grounds for divorce before you can file. These grounds can be split into two separate categories; fault based grounds of divorce and non-fault based grounds of divorce. Each grounds for divorce carries with it a separate waiting requirement and requires you to prove different things. What do you need to do in order to qualify for divorce in Virginia, and what do you need to know about these grounds of divorce?
Fault Based Grounds of Divorce
The first, and largest, category of divorce grounds is fault based grounds of divorce. Virginia law allows you to file for a divorce if one of the following issues are present; adultery, physical abuse, mental abuse, and desertion. Virginia law also requires that you provide clear proof that one of these grounds have occurred.
For example, with adultery, you must not only prove the identity of the other party, but you must also prove the date and location that the alleged adultery occurred. These burdens of proof make it difficult to pursue a fault based grounds of divorce in Virginia.
However, successfully pursuing a fault based grounds of divorce can impact how the court will handle property distribution and alimony. The more “at fault” the court views one of the parties, the more harshly they will be treated by the court. For example, committing adultery is generally a bar to alimony in Virginia.
No Fault Grounds of Divorce
This is a much smaller category of grounds for divorce. This category applies if you have been living separate and apart from your spouse for a period of time; either six (6) months or one (1) year depending on the facts of your case.
The benefit of a no fault based grounds of divorce is that you only required to establish the date of separation and that the parties have lived separate and apart for the required period of time. You must also show that the you and your spouse have divided all the debt and assets, and that the court is only required to finalize the divorce.
Why You Need a Lawyer for Divorce
A lawyer is essential in understanding the various things you have to prove in order to establish any given grounds of divorce. Furthermore, a lawyer can help you prepare your case to maximize your chances of success and reduce the delay of filing for divorce. Seek out a lawyer if you intend to file for divorce.
Virginia Divorce: What is Pendente Lite Relief?
What is pendente lite relief and how does it work? This article explores the concept of temporary relief after you file your lawsuit for divorce, custody, or support.
Divorce is an expensive and emotional process. When one spouse files for divorce, it may result in animosity and, in some instances, danger. Virginia law allows you to request that the court enter an order requiring your spouse to do certain things while the divorce proceedings are pending. Common examples of this type of relief include sole possession of the marital home, no derogatory language, a no contact order, or preliminary support.
So what is pendente lite relief and how does it work?
When to File for Pendente Lite Relief
A request for pendente lite relief can only be filed after a suit for divorce, support or custody has been filed with the appropriate court and the other party has been served with the lawsuit. You cannot file for pendente lite relief prior to your spouse receiving service of process. Service of process is typically accomplished by having the local sheriff deliver a copy of the Complaint and Summons to your spouse.
What Can You Ask For?
Virginia law gives you a wide array of things you can ask for with pendente lite relief. If you cannot afford to hire a lawyer because your spouse has denied you access to the bank accounts, a pendente lite order may require your spouse to open access to the bank accounts. If your spouse is abusive and you cannot afford to find a new place, the court has the power to require your spouse to move out of the marital home and grant you sole, exclusive use and possession. The court also has the power to enter a preliminary order deciding issues of custody and visitation.
How Long Does Pendente Lite Relief Last?
It generally depends on the court you are in. A pendente lite order is designed to protect the parties until the case has been fully resolved. However, the court has discretion to limit the length of any particular request or to modify its order during the pendency of the lawsuit.
Why You Need a Lawyer
A request for pendente lite relief requires a hearing on the merits of your case. A mini-trial will need to be held, witnesses must be produced, and the reasons for your requested relief must be provided to the court. Evidence and hearings are the most difficult part of the legal process, and a lawyer can help insure that you have provided the court with the appropriate types of evidence and documentation. Failure to hire a lawyer may result in your requests being denied or your evidence not being heard. Hire a lawyer to increase your chances of success.
Spousal Support: How to modify.
Sometimes spousal support needs to be changed based on a change in circumstances. What do you need to be aware of before filing for a modification of spousal support?
Virginia law allows you to modify a spousal support order if there has been a “material change in circumstances.” Common examples of times when it would be appropriate to request a modification of spousal support include getting laid off, obtaining a new job, or suffering from a workplace injury that makes you unable to work.
So how often will a court modify a spousal support order, and what do you need to know before you file?
What is a material change in circumstances?
The first thing that you must prove before the court will grant you a modification of your spousal support is that there has been a material change in circumstances. This is a legal term of art that means that finances or living arrangements have changed such that it would be fair to modify the spousal support order.
With respect to changing finances, the most typical times a court will modify your spousal support order is if either party changes their employment situation. A change in employment can be caused by any number of things. However, the change cannot be due to an intentional decision by the employee to take reduced hours or reduced pay. If you intentionally reduce your pay, the court will assume you are still making the same amount of money.
With respect to a change in living arrangements, most court orders only require you to provide spousal support so long as the other party is not living “in a relationship analogous to marriage.” Meaning, if the other party moves in with a new significant other who is taking on the bills or the other party gets remarried, that may also be grounds to amend the spousal support.
How to prepare before filing for a modification of spousal support.
The court will require you to produce a number of documents when you ask for a modification of spousal support. You must prove the material change in circumstances that are the basis for your request. Common examples of documents you need to obtain include three (3) months worth of pay stubs, tax returns, or letters from your doctor showing a disability. Either way, you need documentation proving your case.
Furthermore, it may be a good idea to attempt to negotiate with the other party. After time has passed and temporatures have cooled, the other side may be willing to revisit spousal support. Coming to an agreement may save significant costs.
Why you need a lawyer.
Spousal support modification is complicated in Virginia. At the very least, you need to know how to obtain the documentation you need to prove your case. Additionally, you may need to prove the income or living arrangements of the other party. A lawyer can assist by preparing your case for presentation to the court or negotiating with the other party. If you are considering a change in spousal support, seek out a lawyer.
Spousal Support: Where do you file?
Virginia law provides two options for filing for spousal support. Each option carries its own pros and cons. What are these options, and which is best for you?
Virginia law allows you to file for spousal support two different ways. Each of these different methods of filing for spousal support require different burdens of proof and may have different results.
What are these two options, and which one is best for you?
Spousal Support: Juvenile and Domestic Relations Court ("JDR Court")
You can ask for spousal support prior to filing for divorce in Virginia. This is accomplished by requested spousal support through the JDR Court. There are several benefits of filing for support in the JDR Court.
The first major benefit is that you can ask for support prior to filing for divorce. This allows you to maintain your lifestyle while you wait the required time to file for divorce. Virginia requires you to wait a period of time between six (6) months and one (1) year depending on the circumstances of your case. However, you are likely to have considerable expenses during that time since one of you will have to move out.
The second major benefit is that there is a presumed amount of support in JDR Court. The JDR Court uses a calculus to determine the amount of support that is required based upon the incomes of the parties.
The downside of seeking support in JDR Court is that it will likely exacerbate the dispute between you and your spouse. It increases the likelihood that your spouse will seek a fault based grounds of divorce.
Spousal Support: Circuit Court
You can also ask for support as part of your divorce proceedings. There are several benefits of seeking support in the Circuit Court.
The first benefit is that Circuit Court applies a more thorough test to determine the amount of spousal support that will be paid. The Circuit Court takes into account a number of factors when setting support. The Circuit Court also has the ability to increase or decrease support depending on the unique facts of each case.
The second benefit is that you will be filing for divorce at the same time as your request for spousal support. This speeds up the process, and is ideal if you want to have a speedy divorce.
The downside of filing in Circuit Court is that you must also satisfy all the requirements for a divorce. For example, you must have resided in Virginia for more than six (6) months and have been living separate and apart for a period of time.
Why You Need a Lawyer
A lawyer is important to have because the lawyer can advise you on which of these two options are best in your particular case. A lawyer can also help you prepare the documentation and financial information the Court will need to make a spousal support determination. Failure to hire a lawyer may result in reduced spousal support.
Child Custody: How to Modify an Order
How do you modify a child custody order if something changes? This post addresses that issue.
The purpose of a child custody order is to maximize the amount of time each parent spends with their children and to encourage the personal and academic growth of the children. As children get older, their needs and schedules change. Parents also get new jobs and change houses. Whenever there are significant changes in you or your children’s lifestyle this can create the need for modifying your child custody order.
So, how are child custody orders modified?
Material Change in Circumstances
Before a child custody order can be modified, there must be a “material change in circumstances.” Virginia law requires that the lifestyle change that has happened must be directly related to the wellbeing of the children, and must be a significant change. Courts are unlikely to change a custody order over smaller changes such as a rescheduling of one extracurricular activity.
A common example of a material change in circumstance is a move or an intended move by one of the parents. Changing houses can have a significant impact on your children’s schedules. The move may result in longer commuting times, less time at home for one of the parents, and an increased burden on the non-custodial parent.
Another common example is a job change by one of the parents. If one parent takes on extra shifts at work, this may result in less time spent with the children. Courts are always looking to maximize time with both parents. Therefore, if one parent is unavailable, then the custody may shift to the other parent.
With respect to the children, the most common example of a material change in circumstance is age. As children grow older, they go to different schools and take on more extracurricular activities. The parent that is in a better position to encourage that personal growth for the children is a better candidate for custody.
Best Interest Factors
As with the initial custody decision, the Court will look at the same factors as before. The chief concern in a modification proceeding is the best interests of the children. As such, the Court looks at information including the best education for the children, extracurriculars and any other factors that will help the children mature.
Timeline for Modification
Every court is different. Some courts have more cases than others. However, most modification cases can take between two (2) months and one (1) year depending on how busy your particular court is.
How a Lawyer Can Help You
A lawyer is able to help you prepare your case for the Court. Custody proceedings are emotional, and it is hard to explain your story in a way that the judges are able to appreciate. A lawyers is also able to ensure the attendance of your witnesses and prepare you for what not to say to the Court. Finally, a lawyer can make sure you file all the necessary paperwork.