Virginia Divorce Law: Understanding Settlement Negotiations

In a previous post, I discussed the various alternatives to a nasty divorce trial. One of those major alternatives was settlement negotiation. Settlement negotiation is the process where you and the other side try to negotiate an acceptable resolution for both of you. It is important to consider settlement as an option, as generally nobody gets exactly what they want when cases go in front of a judge. It is better to get something you can live with on your own terms than to risk getting something that could be seen as wildly unfair by both parties.

So what happens during settlement negotiations, and what is the process?

Are You Bound by Settlement Offers?

If you make an offer during settlement negotiations, do you have an opportunity to retract that offer? The answer is generally yes. At least until there is a signed agreement. However, there are some risks in retracting a previous offer.

Virginia law tries to encourage parties to come to a fair resolution on their own and to not waste unnecessary legal expenses. In Virginia, if the Court believes someone is unnecessarily delaying proceedings and being unreasonable, that person can be ordered to pay the legal fees of the other side.

Furthermore, going back on settlement offers can have a discouraging effect on the other side. They may not be willing to consider your new settlement offers if they feel you are being unfair and reneging on previous offers.

What is a Valid Settlement Offer?

Generally speaking, a settlement offer should include all the issues that the court would have to deal with if the case goes to trial. You do not want to leave items on the table. A court will only enter a settlement agreement if all the items have been resolved. For example, if you forget to talk about life insurance or bank accounts, then you do not have a complete settlement offer.

A settlement offer typically takes the form of a proposed separation agreement or an itemized letter. Settlement offers are best done in writing, so there is some proof of the offer in case you have to go to court.

Can Settlement Offers be Used Against You?

Virginia law discourages the use of settlement offers in court. The purpose of this rule is to encourage good faith settlement discussions. So long as you properly label your settlement offers, then the only real use for those offers is to establish legal fees if the other side is being unreasonable. However, if you do not adequately label your settlement offers they could be used against you.

Why You Need a Divorce Lawyer

If you are in settlement negotiations, it is important to hire a divorce lawyer. A divorce lawyer will know how to properly label settlement negotiations to prevent them from being used against you later. A divorce lawyer can also help you understand what is a fair offer, so you do not risk an award of legal fees if the matter does not get resolved and goes to court. If you are considering a divorce, hire a lawyer.

Virginia Divorce Law: Using Expert Witnesses

The world is full of disputes over how best to raise children. People are always debating what kind of discipline to use, what kind of therapy a child needs, what medications will help and what the best education is for their children. There can also be disputes about how to handle finances and how to value certain assets. Expert witnesses are people who are specially educated and trained to help the court deal with these issues.

So what are the different types of expert witnesses, and should you use them in your divorce case?

Common Types of Expert Witnesses in a Divorce Case

Expert witnesses can be split into two separate categories; childcare experts and financial experts. Each of these types of experts serve a different role in a divorce case. Childcare experts can speak to what impacts a proposed custody schedule will have on your children or what school is best. Financial experts can talk about how much your home should be sold for.

With respect to childcare experts, some of the most common experts are therapists, teachers and psychologists. These experts can help you understand what emotional issues your child is having as a result of a split household.

With respect to financial experts, there are many different types of experts. These experts can range from forensic accounts who track money down to real estate experts. The purpose of these experts is to help you understand what all your property is worth so it can be fairly divided.

Who Pays For Experts in a Divorce Case?

Simply put, you do. In Virginia, you are required to compensate your expert witnesses for the time they spend preparing for trial and coming to court. Experts are entitled to their standard rate. Simply because you took your child to a therapist for a check up does not mean you can force that therapist to come to court for free. Experts are expensive, and can cost thousands of dollars

Why You Need a Lawyer For Your Divorce Case.

Because experts can be extremely expensive, a lawyer is necessary for several reasons. First, a lawyer can help you identify which types of experts will maximize your chances of success in court. Second, a lawyer can maximize the usefulness of the expert by preparing them properly and asking them the right questions. Finally, lawyers deal with experts a lot. A lawyer can identify which experts would be best for your child.

Virginia Divorce Law: Alternatives to a Nasty Divorce

Contested divorce cases can often turn into a mud slinging competition. Many people want to try and avoid the anxiety that can come from a nasty divorce trial. If you are considering divorce, there are some things you can do now to set yourself and your spouse on the track towards co-parenting and moving on from a bad relationship.

So what are the alternatives to a nasty divorce trial?

The First Alternative: Divorce Mediation

The first alternative to a nasty divorce trial is to consider mediation. Mediation is talked about more fully in a separate article. However, generally speaking, mediation is the process where you and your spouse select a neutral third party, specially trained in dealing with emotional issues, to listen to both sides. After the mediator has listened to both sides, they try and help you and your spouse come to an agreement that is acceptable.

The benefits of mediation is that is doesn’t require testimony, evidence, or a courtroom battle. It can even be less expensive than a full divorce trial. The downside to mediation is that these mediators are not always legally trained. You may need a lawyer to review what they have prepared for any problems.

The Second Alternative: Marriage Counseling

Not all marital disputes need to end in divorce. One of the major ways of coping with a struggling marriage is to seek professional help. There are many organizations around Virginia that specialize in helping couples work through problems they may be having. Before going straight to a divorce trial, you may want to consider a marriage counselor. At the end of the day, it may not work out, but it is worth trying to identify the key issues that are leading to a full trial.

The Third Alternative: Trial Separation

In addition to the above options, some couples may want to try and see what it is like to live separate and apart before seeking a full divorce. A little distance and perspective can be helpful. However, before going down this route, both sides need to mutually agree to separate. Failure to mutually agree may result in abandonment accusations that could be harmful in your divorce.

Why You Need a Divorce Lawyer

It is important to have a lawyer early in the process to understand what alternatives to a nasty divorce trial may work best for you. Make sure you talk to a lawyer early and often so as to not jeopardize your rights in case things break down and you end up needing that nasty divorce trial after all.

Virginia Divorce Law: How to Discuss Divorce With Your Children

Divorce is an emotional process for the entire family. If you have children above the age of ten (10), they likely know that the process is starting or have a feeling that something in the marriage has changed. Many parents come to me and ask how to talk to their children about an impending divorce.

Generally, the answer to this question is simple; don’t talk to your children about divorce. This article is going to address why it is a bad idea to talk directly to your children about divorce, and what some alternatives are to make sure they are protected.

Why You Should Not Talk to Your Children About Divorce

There are several reasons why it is a bad decision to talk to your children about divorce. The first reason it is a bad idea is because the Court may view talking with your children as an attempt to alienate them from the other parent. If you are trying to discuss what their choices are in terms of where they can reside, you are likely to get punished by the Court. Courts take custody issues very seriously, and they do not want any appearance that a parent is interfering with the process.

The second reason it is a bad idea to talk to your children about divorce is that inartfully talking to them may lead to some degree of psychological or emotional trauma. Child sometimes feel that a divorce can be their fault, and by talking to them about the divorce ahead of time you may be placing emotional stress on them.

How Should You Help Your Children Cope With Divorce?

Instead of talking to your children about the divorce, you should look into therapeutic services for the children. Therapeutic services have several benefits.

The first is that they can help your children work through any emotional trouble they may have as a result of any family dysfunction. As the children learn about the divorce process through their Guardian ad Litem or the fact that they are going to separate households, the therapist can be there to help them work through any associated anxiety.

The second benefit of a therapist is that they can prove to be invaluable resources in a contested custody matter. Therapists are experts, and their opinions about the impact of their relationships with their parents may be informative as to where the children should reside.

Finally, the most important aspect is that a therapist can help avoid having the children testify directly. Testifying in court can be a traumatic experience for children. A therapist can offer opinions about custody and visitation without forcing the children to choose a side.

Why You Should Hire a Lawyer Before Filing For Divorce

A good lawyer is well connected with the local service providers. Part of a lawyer’s job is connecting children with the resources they need. A lawyer can help you identify which therapeutic services are best for your children, and which ones the judges respect.

Virginia Divorce Law: Difference Between Absolute Divorce and Divorce from Bed and Board

There are two major categories of divorces in Virginia; a divorce a mensa et thoro (bed and board) and a divorce a vinculo matrimonii (absolute divorce). There are many factors that go into determining which of these two categories of divorce are right for your particular case. However, before going into those factors, it is important to understand the basic difference between these two types of divorce.

So what is the difference between an Absolute Divorce and a Divorce from Bed and Board?

Divorce From Bed and Board

The first type of divorce to talk about is a divorce from bed and board. This type of divorce only covers a limited number of issues, and is not a full divorce. There are some benefits to a divorce from bed and board that are not available in an absolute divorce.

One example of a benefit is that there is not as serious of a waiting time associated with a divorce from bed and board. In order to qualify for an absolute divorce, you must either satisfy certain waiting requirements (which could be up to a year) or have already qualified for a fault based grounds of divorce (which is discussed in another article.) Another benefit of a divorce from bed and board is that you can ask for temporary relief from a court in the form of spousal support or legal fees.

The downside of a divorce from bed and board is that it is a temporary measure designed to help you until you have satisfied the waiting requirements of an absolute divorce. The other downside is that there are only a limited number of scenarios that allow you to qualify for a divorce from bed and board. Additionally, you are not allowed to marry another person until after you have converted into an absolute divorce.

Absolute Divorce

The second type of divorce is an absolute divorce. An absolute divorce is intended to address all financial issues between the parties. This type of divorce allows you to marry a new person. Another major difference between an absolute divorce and a divorce from bed and board is that it will be the end of the divorce process.

Why You Need a Divorce Lawyer

It is important to hire a divorce lawyer to better understand which of these two categories of divorce is most appropriate in your case. If you need immediate relief and are unable to wait the entire time required for an absolute divorce, a lawyer may be essential in helping you pursue a divorce from bed and board. Talk to a lawyer before deciding to file for divorce.