How to File for Divorce in Virginia

Chapter One Marriage and Divorce MARRIAGE - A STEALTH CONTRACT Unless you had a prenuptial agreement when you got married, you entered into a stealth contract that you probably didn't even knew existed.  The contract consists of hundreds of pages of law and cases for the jurisdiction where you live.  It a major undertaking involving children, support and property.  And you are presumed to know all of the terms of this contract, because you will be held to them. Also, the contract is not very intuitive.  It is different from any other contract you may have signed.  For example, your pay is no longer your pay, but becomes marital property, which is distributable by the court upon divorce.  If you start a business during your marriage, and it becomes successful solely through your efforts, you will probably have to buy your spouse out upon divorce.  If your spouse breaks the contract and wants a divorce, he or she may still get half, and you may have to pay your own attorney fees and your spouse's as well. We all get married till death do us part and for better or worse.  We have hopes and dreams of a long future together.  No one expects to get divorced when they get married.   This stealth contract may never affect you, as long as you stay married.  But it will govern if you ever get divorced. COMMON LAW MARRIAGE Although you can get married in a religious or civil ceremony, you have to obtain a license from the government.  In some states (and the District of Columbia) couples can be married without a license by living together and holding themselves out as husband and wife.  This is called a common law marriage.  Virginia does not recognize common law marriages. MARRIAGE COUNSELING Even though we are divorce lawyers, we are still in favor of marriage.  When a client shows up at our offices seeking a divorce, we ask first if they have tried reconciliation.  We encourage them to talk to their spouses, and confront the problems in their marriage head on.  If that doesn't work, we refer them to marriage counselors.    DIVORCE Even if you are the best husband or wife in the world, you may still end up in a divorce.  Although it takes two people to get married, it takes only one to get a divorce.  It may take longer to get a divorce if only one person wants it, but it is inevitable.  In any group of people there are different agendas and desires.  And a group is two people or more.  So the wonder isn't that there are so many divorces.  The wonder is that so many people manage to stay married. Sometimes you just have no choice but to get a divorce.  You may need to get out of your marriage to have a better life.  You may have chosen the wrong person to marry.  Or your spouse may demand a divorce.   DIVORCE FROM THE BOND OF MATRIMONY Divorce is a way of ending a marriage.  You have to go to court to get a divorce. In Virginia you can have a Divorce from the Bond of Matrimony, which means a final and permanent divorce. A final divorce allows you to get remarried again, resolves all issues of custody, support, and property, may allow for use and possession orders of family use property, allows the court to enter an award to adjust equity, permits the sale of property, and permits a wife to resume a former name. DIVORCE FROM BED AND BOARD There is also a procedure in Virginia for obtaining support and other relief when you don't have grounds for a final divorce.  This is called a Divorce from Bed and Board.  It is Virginia's equivalent of a limited divorce or legal separation.  The grounds for a Divorce from Bed and Board are easier to meet than those for a Final Divorce.  For example, abandonment of any duration, even for one day, qualifies as grounds for a Divorce from Bed and Board in Virginia. A Divorce from Bed and Board permits you to establish custody, visitation and support until you qualify for a Final or Absolute Divorce.  If you don't need to establish those matters, then you may not need to incur the additional costs of this extra proceeding.  You do not have to file for a Divorce from Bed and Board first in order to get a Final or Absolute Divorce. ANNULMENTS Annulments are granted by the court only in certain rare cases.  The legal effect is to void a marriage from the very beginning--as if the parties had never married. A divorce says this marriage is ended.  An annulment says this marriage never existed.  Annulments are rarely granted and usually there has to be some kind of serious fraud involved.  So you are better off in most cases getting a divorce. Religious annulments are easier to obtain, and you may request one even after you have a legal divorce from the court.  You may want to get your spouse's agreement to cooperate in a religious annulment or divorce, but it is sometimes possible to obtain one even over your spouse's objection. PENDENT LITE RELIEF The court can also award pendente lite support.  "Pendente lite" is Latin for "pending the litigation" so it means temporary support until the divorce trial.  There are things you may need for the court to do pending the final trial.  The court, upon request, can set a hearing to determine the financial needs of the parties and children, and the ability of a party to pay, and order support accordingly.  This award is subject to rehearing at the final trial.  The court can also order custody or specific visitation pending the final trial. THE EMOTIONAL DIVORCE Divorce is like a train wreck.  It is just as traumatic to the parties and the children involved.  There are enormous currents of emotions at play during a divorce as well as major legal and financial issues.  Author Abigail Trafford describes these ACrazy Times@ in her book by the same name.  We know what you are feeling right now, because we have had many clients who felt the same way.  Those that followed our advice have found that they feel better today. We distinguish between the legal divorce and the emotional divorce. The emotional divorce may not coincide in timing with the legal divorce.  It may take years to get over your divorce and move on with your life.   We recommend discussing your emotional divorce with a good therapist. Anxiety is a common human emotion.  People will find something to worry about even when times are good.  When going through a divorce, you will find many things to worry about, and you will have good reason to worry.  Even if we tell you not to worry, you will worry.  Let us suggest that instead of  worrying about your problems, you worry at your problems.  Instead of letting your mind be consumed with worrying about how bad the situation is, you should concern yourself with what you can do to solve the problems.  Outline your problems in writing.  It helps you to focus clearly.  (Then destroy these notes.) Depression is another fairly common experience in divorce.  If you are going through a divorce and you feel uncertain, insecure, or depressed, then you have a normal problem.  You may want to obtain some counseling.  But if you are going through a divorce and you feel no uncertainty, insecurity, or depression, then you may have a big problem.  You should get professional help immediately. There are support groups for separated and divorcing parties.  You can find support on the Internet where there are virtual communities of separated and divorced people.  We have included a list of resources at the end of this book. The support of friends and family is invaluable during divorce, but we offer one word of caution.  Your family and friends will offer you advice about your case.  They will tell you about someone that got life-time alimony or someone that didn't have to pay any alimony.  The facts and circumstances of your marriage, divorce, children, and property are unique and are different from any other case.  Often such advice is not correct, and you need to take it with a grain of salt.  This is not your neighbor's divorce or your Aunt May's divorce.  It is your divorce and it is different from anyone else's divorce. We tell our clients that during a divorce: Your ears don't work. Your eyes don't work. Your mouth doesn't work. Your head doesn't work. By this we mean you may not hear or understand everything we say, you don't always say what you mean, you may not perceive things correctly, and you may exercise poor judgment. Your spouse will probably say things that will upset you.  It will help to always keep in mind that, in the end, it is only what the Judge says that counts, not what your spouse says.  So if you are feeling depressed right now, or anxious, or crazy, welcome to the club.  You are not alone.  In fact, you may be joining the majority.  And while this is not a particularly pleasant life lesson, you will survive it, and become much stronger and wiser in the process.