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
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.
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.