Confused About Virginia Family Law? You're Not Alone. Read Our Most Frequently Asked Questions
Dealing with divorce comes with a lot of questions. You may feel very alone, but we hear several of your questions more often than you may think. Browse our FAQs—we think you'll find a lot of helpful answers!
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What is a Divorce Complaint?
The Complaint Begins the Divorce
The complaint is the official first step in the process of your divorce. You may rightfully feel that a lot has happened before you ever file the complaint, but in the eyes of the court and the state of Virginia it begins the divorce. Simply put, the complaint is a document filed with the court that contains information about you, your spouse, the marriage, and why you are getting divorced.
In Virginia, the appropriate time to file the complaint will depend on the type of divorce you are seeking. You can file the complaint immediately if the grounds for your divorce are fault based. That means you are getting divorced because of one of the reasons recognized by the state. Those reasons include adultery, sodomy, buggery, cruelty, apprehension of bodily hurt, desertion, abandonment, or felony conviction. If one of those reasons does not apply, your divorce is called a no fault divorce. In the case of a no fault divorce Virginia requires that you and your spouse are separated for a certain period of time before you can file the complaint. Normally, that period of time is one year. However, if you do not have children that are minors, and you and your spouse signed a separation agreement or property settlement agreement (for our purposes we will call it a PSA), the waiting period is six months. Important note: you can work with your attorney to complete a PSA at any time and do not have to wait six or twelve months to reach an agreement. In fact, you should work to get a PSA as soon as possible with professional help.
Three Sections of the Complaint
Once you are ready to file the complaint it is important to understand what it will include. There are three main aspects to a divorce complaint. First, the complaint will include background information about you and your spouse that allows the court to determine if it has jurisdiction over your divorce. That means you will have to provide information such as your names and addresses, when and where you were married, the ages of your children if you have any, and whether either of you serve in the armed forces. While this sounds straightforward it is important to remember that a court can reject a complaint that does not meet the specific criteria required.
The second aspect of the divorce complaint is particularly important if you are seeking a fault-based divorce. This section of the complaint will include the alleged fault based grounds for the divorce. In other words, you will provide specific factual statements that show the court one of the fault-based reasons applies to your divorce. It is important to understand that at this point you do not have to prove the reason, you just need to state it with some specificity and provide the court any supporting information you have. For example, if the fault-based reason for the divorce were adultery you would not need photographic evidence or an admission for the complaint. It would be enough to provide any details you know about the affair. It is important to include what information you have at this point in the process, but sometimes it will be possible to add or change information later in the process through an amendment to the complaint.
The third and final section of the complaint will include a prayer for relief. That just means you will tell the court what you are asking for with your divorce. This will section will be different for everyone, but it generally includes information about spousal support, child custody, child support, and the distribution of the assets from your marriage.
When you have all of the information gathered to complete your complaint it will be filed with the circuit court for the area where you or your spouse reside. In Virginia, the complaint must also be served on your spouse. Usually that means it will be hand delivered to your spouse by a process server, or sheriff. In some cases service of the complaint will be posted. Either way, once the complaint has been served on your spouse they will have twenty-one days to respond.
The attorneys of Smith Strong, PLC can assist you with filing your divorce complaint. It is important that your complaint meets all of the statutory requirements and includes everything you will be asking for in the divorce. Our experienced attorneys have the expertise to make sure your complaint complies with Virginia law and the foresight to ensure it will accomplish your goals for the divorce. Please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg) to speak to a divorce lawyer.
References: Va. Code Ann. § 20-91
What is an Answer and Counterclaim?
First, Answers and Complaints
An answer in a divorce proceeding is exactly what you would expect; it is a response to the complaint. When one party files a divorce complaint it is “served” on the other party. As soon as that occurs, the other party will have twenty-one days to respond in the form of an answer.
In many ways an answer is similar to a complaint. It contains the same information, but also gives you or your spouse an opportunity to admit or deny the information in the complaint. Sometimes this process is easy and harmless. For example, much of the background information used to establish jurisdiction would not be controversial because it will just be names, addresses, and dates. Generally, an answer would only deny these pieces of information if there were a factual mistake in the complaint.
In other instances it will be necessary to make denials in the answer because you do not see eye to eye with your spouse regarding the allegations made in the complaint. This usually happens in the case of a fault-based divorce where both parties may dispute the reason for the divorce. To illustrate how this works imagine you are seeking a divorce because you suspect your spouse had an affair. You would file a complaint alleging adultery and provide any information you have about the affair. If your spouse disputed that the affair occurred they would deny the information you provided in their answer as being incorrect, or assert their Fifth Amendment constitutional rights. Another common reason to make a denial in the answer is when the date of separation is contested. Because the date of separation is important with respect to the distribution of the marital assets it is necessary to ensure the complaint provides the correct date.
Second, Filing a Counterclaim
Oftentimes a party responding to a divorce complaint with an answer will file a counterclaim as well. The counterclaim provides the responding party an opportunity to make their own allegations about the reason for the divorce and a chance to tell the court what they are asking for. While the answer is simply admitting or denying information from the complaint, the counterclaim can be used to put forth alternative versions of the facts or a completely different reason for the divorce. The counterclaim functions just like a complaint, you do not need to prove anything in the counterclaim. Rather, you just need to make factual statements about the grounds for the divorce and provide information that supports your reason. The counterclaim also allows the responding party to ask the court for what they want out of the divorce. This will include information about spousal support, child custody, child support, and the distribution of the assets from your marriage.
Not all divorces will require one party to file an answer or counterclaim. In an uncontested no-fault divorce if you and your spouse have signed a separation agreement, or property settlement agreement, the terms of that agreement will govern your divorce. In that case the complaint would be filed with a waiver and an answer would be unnecessary because everything would have already been settled in the process of drafting the separation agreement.
If you are served with a divorce complaint or counterclaim the attorneys of Smith Strong, PLC can advise you on the best course of action. The answer and counterclaim stage is crucial in the divorce process because not responding appropriately to a complaint will force the court to accept the allegations made as true. An experienced divorce lawyer can ensure your response properly addresses the complaint and serves your best interests. Please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg).
References: Va. Code Ann. § 20-99
How should I prepare for a court appearance, and how should I behave while in court?
While attending court may be nerve racking, it is very important that you are prepared for your visit. Whether you are the plaintiff, defendant, or witness, how you present yourself could dramatically affect your credibility.
First, take care with your physical appearance. It is important that you dress respectfully and neatly. Avoid wearing clothing that looks messy or unprofessional, as how you dress can express a lot about your character. Instead, opt for professional, business-style clothing. Woman should wear clothing that is not revealing, such as a dress, skirt or dress slacks with a blouse. For men, dress pants with a clean, tucked in shirt or a suit are appropriate. Overall, avoid wearing jeans, t-shirts, shorts, mini-skirts or any revealing clothing.
Second, be respectful of court personnel. Whether you are addressing the Judge, the Commonwealth’s Attorney, the Deputy or the Court Clerk, everyone you come in contact with at the court deserves your respect. Avoid foul language as it can come across as disrespectful and rude. Follow court protocol and directions.
Third, be honest. Always tell the truth in court. When asked a question, answer clearly and politely. Attempt to give answers as completely as you can. If you do not know the answer to a question or don’t understand a question, say so. This way, the party asking the question can frame it in another way so you can understand. Remember, if you take care with your appearance and show good character, court may be a far less daunting experience.
Most importantly, hire legal counsel who will help you prepare for your court appearance. Our attorneys here at Smith Strong, PLC are ready to support you throughout the court process. With offices in Richmond and Williamsburg, Virginia, we will gladly guide you through any family law issues you may be facing, including divorce, custody and support matters. You are also welcome to request a free copy of our Founder H. Van Smith’s latest book, The Ultimate Guide to Divorce & Custody in Virginia: Quickly Get Back to Fully Living Your Life, emailed to you instantly.
Call us today at (804) 325-1245 or (757) 941-4298 to schedule a SMARTSTART comprehensive case preparation meeting.
Disclaimer: Please note that every case is different, therefore, this article should not be construed as legal advice or replace an attorney-client relationship.
What is a protective order and how can I obtain one in Virginia?
A married couple in Virginia may begin the divorce process for any number of reasons, one being the presence of domestic violence within the family. If this occurs, seeking a protective order may be the right choice when consulting a family law attorney and finalizing the divorce agreement.
In the Commonwealth of Virginia, domestic violence is qualified as abuse—emotional, physical, or sexual in nature—carried out between intimate partners or family members, with the purpose of establishing dominance in the relationship. While being the victim of abuse within a marriage is an extremely distressing and difficult situation, there are options for preventing the continuation of such an ordeal. For example, a request for a protective order is certainly worth discussing with your family lawyer if your situation applies.
A protective order is a civil law order authorized to limit contact and prevent further abuse between the abuser and the victim, and it can vary in duration (ranging from 3 days to 2 years) and in strictness. To obtain a protective order for domestic violence in Virginia, a petition must first be filed at your local Juvenile and Domestic Relations District Court Services Unit (CSU). There is one located in every county and city in Virginia. There, you will be able to provide the information about the abusive situation and the abuser’s identification. Read through the Code of Virginia's section on Protective Orders for a complete definition of this concept.
Although consultation with an attorney is not a requirement for establishing a protective order, having a knowledgeable guide could be a great advantage when considering your options. With offices in Richmond and Williamsburg, Virginia, our firm is ready to take your call about any family law issues you may be facing, including divorce, custody and support matters. You are also welcome to request a free copy of our Founder H. Van Smith’s latest book, The Ultimate Guide to Divorce & Custody in Virginia: Quickly Get Back to Fully Living Your Life.
Call us today at 804-325-1245 or 757-941-4298 to schedule a SMARTSTART comprehensive case preparation meeting.
What is alimony, and how is it determined in Virginia?
Alimony is an amount of money, either paid in a lump sum or over the course of a certain amount of time, that one spouse gives to the other following a divorce. In Virginia, the amount and payment schedule are settled between the spouses, and if that cannot be decided between the two, a judge will make the final determination. There are many factors that go into establishing alimony, including the following:
- how long the couple had been married
- net worth of each spouse
- earning potential of each spouse
- spouse or family health issues (age-related, physical, or mental impairments)
- living standards set over the course of the marriage
- one spouse’s contribution to the other’s attainment of a career or an education
Permanent alimony—payments granted until the death of one spouse—used to be the most common form of alimony, but as job and educational opportunities between the sexes have become more equalized, that trend has changed. While it is still an option in Virginia, permanent alimony is being eliminated in several states undergoing law reform. Now, a common type of alimony that is granted is called rehabilitative alimony. This form still involves the above-mentioned factors, but only lasts until the spouse receiving support has enough to become employed and financially independent.
With offices in Richmond and Williamsburg, Virginia, our firm is ready to take your call about any family law issues you may be facing, including divorce, custody and support matters. You are also welcome to request a free copy of Smith Strong PLC Founder H. Van Smith’s latest book, The Ultimate Guide to Divorce & Custody in Virginia: Quickly Get Back to Fully Living Your Life.
Have all of your alimony questions answered. Call 804-325-1245 or 757-941-4298 to schedule a SMARTSTART comprehensive case preparation meeting with one of our Commonwealth of Virginia family law attorneys.
What is an Annulment?
Annulment Versus Divorce
A decree of annulment legally voids a marriage. In contrast to a divorce, which legally ends a marriage, a decree of annulment declares that the marriage in question was never valid and thus voidable. Marriages may be found invalid in particular cases of fraud, when particular information may have been withheld by one party from the other, and in cases of intimidation or duress. In the state of Virginia, parties can only originate a suit of annulment if they meet these qualifications. Essentially, an annulment erases any trace that the marriage in question existed.
In one famous case, the wife of Mexican actor Felipe de Alba obtained a decree of annulment one day after the couple was wed. The court voided the marriage because Zsa Zsa Gabor was still legally wed to another man at the time of her marriage to Felipe de Alba. In another widely publicized suit, Darva Conger contested her marriage to Rick Rockwell that had occurred live on the hit reality show Who Wants to be a Millionaire? Conger was granted an annulment on the grounds that she was not aware of a restraining order formerly filed against Rockwell.
The Virginia Code of Statutes is very specific in regards to obtaining an annulment. Let one of our family law attorneys guide you through this process and answer all your legal questions. We encourage you to give us a call at (804) 325-1245 (Richmond) or 757-941-4298 (Williamsburg) to set up an initial consultation.
For a more comprehensive look at annulments and how to get an annulment in Virginia read this article, here: http://www.smithstrong.com/
library/annulments.cfm. Or, contact a divorce lawyer at Smith Strong today.
What is the UCCJEA and what does it have to do with my Virginia Child Custody case?
Virginia, among 49 other states, implemented the 1997 UCCJEA Law, or Uniformed Child Custody Jurisdiction and Enforcement Law, which hands jurisdiction to either the “home state” or the state with “significant connections.”
“Home state” by definition is the state where the child last lived for six months or longer, or the child’s birthplace if that child is under six months old. What is important to note is that a state can remain the child’s home state for legal purposes even if the child is not currently living there, as long as a parent still lives in the state.
In the event there is no home state or the home state rules to not exercise jurisdiction, then “significant connections” comes into play. This second aspect of the UCCJEA rule is very interesting. For such a state to qualify for “significant connections” jurisdiction, clear and plausible connections to that state must be existent. Specifically, there must be “substantial evidence about the child’s care, protection, training and personal relationships.”
One important point of UCCJEA is to prevent a parent with legal intentions from attempting to relocate in haste and then file for custody or visitation rights. The UCCJEA replaces the UCCJA, and as such, it reinforces more consistently and clearly the Parental Kidnapping Prevention Act as to determine proper jurisdiction in Child Custody and Visitation cases.
Your child custody case starts here. Call our Williamsburg office at (757) 941-4298 or our Richmond office at (804) 325-1245 and sit down with one of our Virginia attorneys who will assist you in your navigation.
Do courts care about social media?
Facebook, Twitter, texting, Skype, e-mail chats, iPhones and Androids have infiltrated and consumed the way we communicate in our professional and personal lives. But how does the Virginia Court system view these posts, tweets and texts?
With more validity than you might think.
Much in the same way ‘Distracted Driving’ (texting and driving or talking on your cell phone while driving) have become traffic violations in most states, Virginia legislation is quickly acknowledging the content of social media as potential evidence in a court of law. For family law, this means that in many cases throughout Virginia, text messages, e-mails and other media content have been admitted as evidence for divorce and child custody cases.
Of course, there are a series of challenges to understand when it comes to this kind of information being used as evidence. For example, take a fault-based divorce case. An e-mail or a text message on it’s own is not sufficient grounds for divorce, but it can be used to confirm testimony.
Don’t forget also that information like text messages, e-mails and Facebook posts need to be proven. For instance, it needs to be proven, without a doubt, that the person who pays the phone bill and owns the phone is the same person that sent the text messages.
The key is that ‘clear and convincing’ evidence, which is relevant to the matter at hand, is exhibited. If there is an overwhelming number of text messages, e-mails, financial records, and social media all pointing towards the same alleged offense, the combination can be permissible evidence in family court.
This only scratches the surface of social media’s significance, yet indeterminacy, in Virginia’s family court system. If you feel like you need guidance in your divorce or child custody case, call us at (804) 325-1245 to schedule a consultation.
What is the role of a GAL (Guardian ad litem)?
The role of the Guardian ad Litem (GAL), usually an attorney, is one who acts as an advocate for the child, providing to the judge a forthright, third-party perspective in the entire duration of cases when minors are involved. Having this third-party representation provides an immeasurable service to custody and support cases, where the best interest of the children is paramount.
Rules of the Supreme Court of Virginia defines the role of the Guardian ad litem as “The role of counsel for a child is the representation of the child’s legitimate interests. When appointed for a child, the guardian ad litem shall vigorously represent the child, fully protecting the child’s interest and welfare. The guardian ad litem shall advise the court of the wishes of the child in any case where the wishes of the child conflict with the opinion of the guardian ad litem as to what is in the child’s interest and welfare.” (8.3)
Vigorous is the key. In addition to serving as the child’s attorney when necessary, the GAL acts ‘behind-the-scenes’ as an investigator and witness from the beginning of court process to resolution of your matter. The GAL has the right to talk to whoever—attorneys on both sides, parents, doctors, teachers—all to the effect of advocating for your child’s best interests.
The purpose and role of the GAL is absolutely positive, and here at Smith Strong PLC we work closely with you and the GAL to help you get the right answers. We encourage you to give us a call at (804) 325-1245 and set up your consultation with one of our Virginia attorneys to answer all of your legal questions.
Disclaimer: Please note every case is different, therefore, this article should not be construed as legal advice or replace an attorney-client relationship.
My ex-husband—the non-custodial parent for our two daughters—has not paid his child support in over six months. What should I do?
If you have a child support obligation in place, the parent ordered to pay cannot simply ignore that fact. There are a few things that can be done to make sure a child support order is upheld. You should ask your lawyer to file one of a few different motions:
- A Motion to Show Cause will force the parent who hasn't paid to appear in court and explain to the judge why he has not made his required child support payments. It is up to him to prove why he should not be held in contempt of court.
- A Motion for an Income Deduction Order requests to have child support payments withheld from the parent's paycheck at work. That puts the non-custodial parent's employer in charge of taking the money out of your ex-husband’s paycheck and making sure you get it. Even if—for some reason—the employer forgets to withhold the money one week, it is still the non-custodial parent's job to make sure you are paid.
- A Motion and Notice for Judgment for Arrearages has the court calculate how much money the non-custodial parent owes you and enters a judgment against him for that amount.
Not paying child support can result in fines and even jail time.
In some cases, a parent is unemployed and simply unable to pay child support. If you are the custodial parent, remember that this is not your fault and you should not feel bad still needing money to support your child. It is the unemployed non-custodial parent's duty to contact the court himself to plead his case and ask for a modification in the support order. If the non-custodial parent chooses not to tell the judge about his job situation, he is still required by law to pay his child support obligation.
If you need assistance establishing a child support order in Virginia, call 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg) to contact the attorneys at Smith Strong for a consultation.
Can I request to stay on my husband's employer-sponsored health insurance plan as part of our spousal support agreement?
Unfortunately, no. This can be a stipulation in a child custody or child support agreement following a divorce, but as for spousal support, your ex-husband does not have to keep you on his health insurance.
There is a silver lining, however. Once your divorce is finalized, there is a chance you could be eligible for benefits under the Consolidated Omnibus Budget Reconciliation Act—also known as COBRA—if your spouse works for a company with 20 or more employees. This means that you can get continuation coverage for up to 36 months (three years) following your divorce. You can expect to be charged for this coverage, but the employer cannot charge you more than 102 percent of the premium for its employees. Note, however, that amount is 102 percent of the whole premium, even if your ex-husband pays only part of that premium by paycheck deduction.
If you do decide to take the temporary COBRA coverage, you will need to accept it within 60 days of your divorce being final. If you do not accept the health insurance during that time, you are forfeiting the opportunity.
Something else to consider before accepting COBRA coverage is if you face a serious illness or injury during that temporary coverage period, you may have trouble finding good health insurance once it expires because of your pre-existing condition or past health history. If you are in relatively good health when your divorce is finalized, you may want to look for your own health insurance just to be safe and covered. Keep in mind that you can accept COBRA insurance and then drop it at any time during those 36 months.
During our divorce proceedings, will our property just be divided 50/50?
Unfortunately, it's not quite that simple.
First of all, you and your ex-spouse have the option to divide up your assets on your own. You never have to set foot in a courtroom to have your property division decided upon if you are able to come to an agreement without a judge. Not all former spouses are able to work together amicably like this, but it is definitely the preferred option for many people because…
The spouses get to have a say in the property they keep, and can choose to retain—rather than sell—specific items that have sentimental value.
Handling the division of marital property by mutual agreement can save considerable time and money.
You certainly do not have to do this completely on your own, and it is actually recommended that you have a lawyer facilitate the discussion to make sure all of your bases are covered properly.
If you do determine that you need your property divided in a court of law, Virginia follows the idea of "equitable distribution." With equitable distribution, your marital property (property accumulated during the marriage) is divided up fairly. There are specific definitions regarding what constitutes marital and non-marital property that you can read about here, from the Code of Virginia. This does not mean it is split 50/50; rather, it means the judge splits in it a way that he feels is fair. He will look at what each spouse contributed to the marriage (monetary and non-monetary) and decide from there. Sometimes, the person who was the household breadwinner will get 2/3 of the property, while the other spouse will get 1/3. It really depends on your specific, personal situation.
How do I keep my divorce out of court, but still get a fair result?
If you and you partner are able to get along fairly well, you may be prime candidates for divorce mediation. Mediation keeps divorce out of the courtroom and puts your fate into your own hands.
The thing about bringing your divorce to court is that even if the final details are "fair" in the court’s eyes, they may not be fair to you or your partner. The judge tries very hard to make things fair for everyone, but the fact of the matter is: he isn’t you. He hasn’t lived your life, owned your things, or been in your marriage. He can do only so much to work out the details of your divorce.
Mediation lets you and your partner decide what happens in your divorce. You meet at a neutral location with a mediator, who is an un-biased third party. The mediator is there to guide your discussion and aid in negotiating terms of your divorce. She is not there to give you legal advice or argue on behalf of one party; her job is only to keep you on track and help you settle your divorce amicably. In other words, she is more concerned about the mediation process, rather than the settlement outcome.
Aside from keeping your divorce out of the courtroom, many people prefer mediation because it tends to be far less expensive than a hotly debated divorce in court. And, because you do not need to schedule proceedings according to the court’s schedule, mediated divorces tend to move more quickly and become finalized much sooner than other divorces.
Once a divorce is finalized in mediation, both parties can go on with their lives, feeling good about how they both agreed on how things should end. If you are interested in Virginia divorce mediation, contact Smith Strong by calling 804-325-1245 to set up a no-obligation consultation.
Is it possible to keep my divorce out of the courtroom?
Yes, in some cases people are able to work out their differences without appearing before a judge. This generally works out best for couples who are splitting amicably, or at least are able to put their differences aside for a while to take care of business. This is also an excellent option for couples who do not have a lot of money and are hoping to avoid a long, drawn-out, expensive divorce.
If you try to work out the details of your divorce with mediation, it will be just you, your spouse, and a mediator. The mediator is an impartial third party that will help facilitate a discussion and keep you both on track toward a resolution. You will work through all of the important details and both of you will have to come to an agreement on key issues like property division and a parenting plan. Mediation is great because not only does it decrease the amount of time and money you're investing into this divorce, it also makes sure that you're both walking away from the whole thing relatively happy and satisfied. When you aren't able to work things out on your own, the judge is in charge of deciding your fate and it isn't always what either spouse wants.
Mediation isn't always right for every couple, but it's definitely an excellent way for some couples to handle their divorce. Settlement conferences led by attorneys can provide another venue and process for some sort of out-of-court reconciliation. Our firm regularly holds settlement conferences for clients, often with successful outcomes. Feel free to discuss your options regarding either mediation or a settlement conference with our attorneys to decide what might be best for you.
Will I still receive my spouse's military benefits after our divorce is final?
Whether or not you keep your military benefits will be determined by how long you were married, as well as a few other factors.
In most cases, spouses of service members lose their military benefits after a divorce. This means they are no longer entitled to base housing, a housing allowance, commissary privileges, post exchange privileges, and on-base medical care.
There are a couple situations where you can keep your spouse's military benefits, but there are very specific criteria involved.
The first situation is the 20/20/20 Rule, and if former spouses meet these criteria, the service member's former spouse is entitled to full military benefits. To qualify:
- You must have been married for at least 20 years; and
- The servicemember must have had at least 20 years of creditable service; and
- There must have been at least a 20-year overlap between the marriage and the military service.
The second situation is called the 20/20/15 Rule, and if former spouses meet these criteria, the former spouse of the service member is entitled to one year of transitional medical benefits. Note that this does not include any other military benefits aside from medical coverage. To qualify:
- You must have been married for at least 20 years; and
- The servicemember must have had at least 20 years of creditable service; and
- There must have been at least a 15-year overlap between the marriage and the military service.
Even if one spouse does not have a military pension, he/she may still have a Roth IRA or independent brokerage account that may need to be divided. Talk to an attorney, so that you know which questions to ask.