Deciding it’s time to end your marriage is difficult and stressful. Because obtaining a divorce is a legal process, you need to understand your rights and how the process works.
This brief guide will walk you through the basic legal steps and give you an overview of the divorce process. However, it’s critical that you speak to an experienced family law lawyer as early in the process as possible to make sure your rights are protected.
If you or your spouse has lived for at least the last six months in Virginia, you can start the divorce process in the county where you live. Every case is unique, and most divorce cases are settled with minimal court involvement. However, some cases go all the way through a trial.
Here are the basic steps in a divorce case:
While the divorce process looks straightforward when written down, it is an emotional process with periods of frantic activity and many long periods of waiting for the next step. No two people will have the same experience.
If no one has yet filed for divorce, one of the best things you can do for your case and your future is to meet with a skilled Virginia divorce attorney to talk about your options.
Often there are steps you can take before your divorce that will make the entire process smoother.
You will also want to gather important documents relating to your finances, such as bank statements, mortgage statements, investment account information, and credit card statements.
If you have children, you will also want to think about what your goals are for them. Divorce is especially hard on children, and the court will want to see that the parents are working to make sure their lives are disrupted as little as possible.
Sometimes, you don’t have the option to meet with an attorney before a divorce starts because your spouse has already initiated the process.
If you’ve already been served with a divorce complaint, you must meet with an attorney as soon as possible because the clock is ticking on your opportunity to respond.
While every divorce is painful, not every divorce is heated or contentious. Many couples end up having a non-contested divorce.
This means that both sides agree about all the major issues. The two sides come to an agreement themselves, or with the help of attorneys and mediators, about property division, splitting retirement accounts, child custody and support, and spousal support.
In this situation, the attorneys draw up an agreement for both parties to sign. The agreement is then sent to the court for a judge to review and sign. When minor children are involved, a judge will want to make sure that the agreement is fair to them and that their support needs are adequately provided for.
Even if you and your spouse have agreed on all the issues on your own, you each should still seek the advice of an attorney to make sure that the court will approve your agreement and that your rights are protected.
A Virginia divorce lawyer cannot represent both spouses in a divorce. It is a conflict of interest. Each person must have their own lawyer.
A non-contested divorce is generally much less expensive than a contested divorce.
A contested divorce means that the two sides do not agree on one or more critical issues. Many divorces begin as contested but settle out of court before going to trial.
In a contested divorce, the spouses usually argue over how the marital property will be divided, child custody, child support, and spousal support.
In a contested divorce, there are often several hearings before a judge to monitor the progress of the case. Both sides will be required to produce documentation about their individual finances and the assets they share. There may be depositions and custody studies.
Contested divorces often take more than a year before they’re fully resolved. The last stage in a contested case is a trial before a judge. The judge will review documents and hear testimony from the spouses, witnesses, and experts.
After the end of the trial, the judge will spend days or weeks reviewing the evidence and writing an order for explaining how the property will be divided, what child and spousal support will be ordered, and what the child custody and child visitation arrangements will be.
While sometimes going to trial is the only way to fully protect your rights, especially when the other side is being unreasonable, most people are much happier when they can arrive at a compromise instead of having something imposed by a judge.
The first formal step in a divorce case is filing a Complaint for the dissolution of marriage and having that paperwork served on your spouse.
Your lawyer will draft the Complaint. It is a legal document where you outline why you are seeking a divorce and what you are seeking. The Complaint is like a first offer in a negotiation, and it is much more general than the final judgment.
However, filing the paperwork is just the start. Once the other spouse is served, they have 21 days to file their answer with the court. There are also many ways and reasons for a souse to request an extension of time to file a response.
In the rare instances where someone never responds to being served with the divorce, the filing party can request that the court enter a judgment after a hearing.
Usually, the other spouse will respond through their attorney. From that point forward, the lawyers represent the parties in court.
Typically, one of the first actions in a divorce case is for the side that files for the divorce to ask the court to enter a series of temporary orders, known as Pendente Lite. These orders typically forbid the parties from making changes to any accounts or insurance policies. They also state that the children should remain in the home where they already live and that no significant changes in parenting time should occur.
There are two primary reasons for these orders. The court wants to prevent anyone from hiding any assets or unreasonably spending any assets. The other goal is to give any children in the marriage as consistent a life as possible.
In a marriage, much of the property belongs to both spouses. But there might be property that only belongs to one spouse. This may include an inheritance, real estate, or a business a spouse owned prior to the marriage.
Part of the work of the divorce is to determine what property is part of the marital estate and what property belongs solely to the individual spouses.
The divorce will determine how to split the marital estate between the two spouses. Virginia is not a community property state. That means that the marital estate is not automatically divided 50/50 between the two spouses.
Instead, the court must decide what the most equitable division of the property is given the unique circumstances of the marriage.
The parties can agree upon a property division at any time in the divorce process.
Children often feel like they’re caught in the crossfire when their parents get a divorce. It’s essential that both parents work hard to keep their children’s routines consistent and as free from the conflict of divorce as possible.
In all but the most exceptional cases, the court wants to ensure that children enjoy parenting time with both parents.
When deciding custody and child support issues, the court is charged with making decisions in the child’s best interest. Courts will usually order couples to go to mediation to try and come to an agreement about child custody and parenting time.
You will often hear terms like joint custody and sole custody. Sole custody does not mean the other parent loses their parental rights.
Sole custody means that one parent has been awarded most of the parenting time and that they are responsible for making day-to-day decisions for the child. However, both parents are still entitled to certain information about the child regarding school, medical, and other important matters.
Joint legal custody usually means both parents jointly make day-to-day decisions about the children. Shared physical custody means the parties share close to equal parenting time with the children.
Parenting time arrangements and custody agreements can be as flexible or rigid as needed to give children the best situation.
Child support is less flexible. Child support is determined by a formula that includes the income of both parents and the amount of parenting time each parent has.
The parent with less parenting time usually pays some amount of monthly child support to the other parent.
If parents cannot agree on custody or parenting time, the court may order a custody evaluation. A court-approved social worker will meet with the parents and children and may visit the two households. The evaluator then makes a recommendation to the court about what custody and parenting time arrangements would be in the children’s best interest.
One thing custody evaluators and judges universally have no tolerance for is parents who try and use their children as pawns in the divorce or who talk bad about the other parent in front of the children.
Mediation is a process where a neutral third party, often an attorney or family law judge, will try and help the parties come to an agreement.
Parties may be required to attend mediation and cooperate in the process. However, you are never required to agree.
Experience shows that most people are happier with mediated settlements than court judgments.
Your divorce lawyer will help guide you through any mediation process. Their job is to make sure that your rights are protected and that you fully understand any agreement before you sign it.
There are many events and hearings that will occur before your divorce case heads to trial. Judges will hold regular status conferences with the lawyers to check on the status of the case. There may be hearings on motions relating to restraining orders or temporary custody and parenting time arrangements.
You may have to attend a deposition. This is where you are asked questions by your spouse’s lawyer while under oath. There is not a judge at a deposition. Your lawyer will help prepare you and will attend the deposition.
The purpose of a deposition is to lay the groundwork for the testimony offered at trial.
You may also be required to attend parenting classes and settlement conferences before your case goes to trial.
If your case does go all the way to a trial, it won’t be anything like you see on TV. There is no jury in divorce cases.
The side that filed the divorce, the Plaintiff, will make their case first. Both sides will make opening statements, and both sides will have the chance to call witnesses and submit evidence.
A trial can last anywhere from a few hours to several days, depending on the issues in dispute and the complexity of the evidence.
Often, you will have to wait several weeks after a trial is over before you receive your final order and your divorce is complete.
Just like every marriage is different, every divorce is unique. There is no one-size-fits-all approach.
If you have been served with a divorce or are thinking about filing for a divorce, you need to meet with a skilled, experienced Virginia family law lawyer.
Here at Melone Hatley, P.C., we proudly serve families from Chesapeake, Fairfax, Loudoun, Reston, Richmond, and Virginia Beach who need a family law lawyer. We handle contested and non-contested cases as well as child custody and child support issues.