This is a question many people face between the time that they've decided they want a divorce and the time they visit an attorney: Should I leave the home? You may face this question for a multitude of reasons: your spouse refuses to leave, you need your space, you want a fresh start, etc. You should be aware, however, that leaving the marital home may have consequences to you.
Leaving the marital home may decrease the chances that the court award you custody of the children. In many cases (although, remember, child custody takes many factors into account), the parent remaining in the marital home may be awarded custody. This is because courts like to see stability for the children and remaining in the home may be able to increase that stability. There may be additional monetary consequences when it comes down to distributing assets, depending on the specifics of your case.
If you are thinking about divorcing, you should contact an attorney as soon as possible to determine the best avenue for you to move forward. If you would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Showing posts with label separation. Show all posts
Showing posts with label separation. Show all posts
Friday, April 25, 2014
Wednesday, March 26, 2014
Going through a divorce? Think twice before spending "your" money.
This is the messiest time of a relationship: you are separated from your spouse but not officially divorced. You have unofficially split up some assets. Maybe you each opened a separate checking account. Maybe you took some money out of the joint checking account and moved it to your personal checking account. Maybe you cashed in some retirement funds. Think twice before you spend a large chunk of money during separation; here's why:
The technical term is "dissipation of marital assets" and what it means is that you have spent marital money (i.e. money that belonged to you and your spouse jointly) on personal items (i.e. a weekend girls' trip to the beach, a new wardrobe for yourself, etc.). The result of this is that you may owe some money back to your spouse at the end of the divorce for what you spent. Here's an example:
You and your spouse has $25,000 in your joint checking account at the time of separation. During the separation $10,000 is used to maintain marital assets and the family. Also during the separation, you take $10,000 and spend it on a vacation for you and your friends. Due to those expenses, at the time of your final divorce hearing there is $5,000 left in your joint checking account. $10,000 of that was spent permissibly on maintaining marital assets and the family. Because the court will consider your $10,000 spent on a vacation as dissipation of marital assets, that amount will not be deducted from the $25,000 you started with at the time of separation. That leaves you with marital property of $15,000. To recap: there is actually $5,000 in your joint checking account but there is $15,000 worth of marital property from that joint checking account. Let's say the court determines marital property is split 50/50. You get $7,5000 and your spouse gets $7,500. Because there is only $5,000 in that joint checking account and you already spent $10,000 of that joint checking account money on yourself, you will be required to repay $2,500 to your spouse.
Now, this does not mean you cannot use money to pay the mortgage and the bills and for groceries. Marital funds can permissibly be spent to maintain the family and marital assets (i.e. the marital home, cars, etc.).
As you can see, even with a simple example and even numbers, this area of law can get quite complicated. If you are separated or contemplating separation, take a quick read on why you should consult with a lawyer first here and what you can expect from an initial consultation with an attorney here. If you would like more information or a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
The technical term is "dissipation of marital assets" and what it means is that you have spent marital money (i.e. money that belonged to you and your spouse jointly) on personal items (i.e. a weekend girls' trip to the beach, a new wardrobe for yourself, etc.). The result of this is that you may owe some money back to your spouse at the end of the divorce for what you spent. Here's an example:
You and your spouse has $25,000 in your joint checking account at the time of separation. During the separation $10,000 is used to maintain marital assets and the family. Also during the separation, you take $10,000 and spend it on a vacation for you and your friends. Due to those expenses, at the time of your final divorce hearing there is $5,000 left in your joint checking account. $10,000 of that was spent permissibly on maintaining marital assets and the family. Because the court will consider your $10,000 spent on a vacation as dissipation of marital assets, that amount will not be deducted from the $25,000 you started with at the time of separation. That leaves you with marital property of $15,000. To recap: there is actually $5,000 in your joint checking account but there is $15,000 worth of marital property from that joint checking account. Let's say the court determines marital property is split 50/50. You get $7,5000 and your spouse gets $7,500. Because there is only $5,000 in that joint checking account and you already spent $10,000 of that joint checking account money on yourself, you will be required to repay $2,500 to your spouse.
Now, this does not mean you cannot use money to pay the mortgage and the bills and for groceries. Marital funds can permissibly be spent to maintain the family and marital assets (i.e. the marital home, cars, etc.).
As you can see, even with a simple example and even numbers, this area of law can get quite complicated. If you are separated or contemplating separation, take a quick read on why you should consult with a lawyer first here and what you can expect from an initial consultation with an attorney here. If you would like more information or a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Wednesday, February 19, 2014
Why you may want to consider a divorce or custody settlement
Divorce and custody cases can be very emotionally, mentally and physically draining period of time. Because of all of the emotions surrounding the division of your marriage or the amount of time you will have with your children, your first instinct is probably to fight hard and "win".
It may be beneficial to take a step back and lose the words "win", "battle", "fight" and think more in terms of solutions. How can you get through this time and come out with a more peaceful solution for everyone involved. And by everyone, I mean, specifically, your children. While you are caught up in beating your ex-spouse, you may be losing sight of what's really important: the children you are "fighting" over.
Think about how you and your ex-spouse could work together to come up with an amicable, peaceful resolution. It will likely benefit your children to see that their parents can still work together. Your children may not feel the need to "take sides" if they don't see the constant fighting over them. You and your ex-spouse are probably less likely to continue "fighting" over the children in the years to come if you came to an agreement together. You will lose a fair amount of the stress that comes along with allowing a third party stranger (i.e. a judge) decide how much time the children should spend with you and your ex-spouse.
Remember, you can be creative. This is YOUR agreement. You and your ex-spouse know your situation better than anyone. You know how the logistics of any arrangement are going to play out. You know your children better than anyone and you know what types of arrangements are going to work for them.
Everyone's case is different and because of that, it would be wise to consult with an attorney who can listen to all of the facts of your case and your circumstances and provide advice on the best way to proceed in you custody or divorce case. Settlements are not always the best for each individual case and you should certainly not settle a case if you do not believe it is your best interest or your children's best interests.
If you would like more information or a consultation on a divorce of custody case, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
It may be beneficial to take a step back and lose the words "win", "battle", "fight" and think more in terms of solutions. How can you get through this time and come out with a more peaceful solution for everyone involved. And by everyone, I mean, specifically, your children. While you are caught up in beating your ex-spouse, you may be losing sight of what's really important: the children you are "fighting" over.
Think about how you and your ex-spouse could work together to come up with an amicable, peaceful resolution. It will likely benefit your children to see that their parents can still work together. Your children may not feel the need to "take sides" if they don't see the constant fighting over them. You and your ex-spouse are probably less likely to continue "fighting" over the children in the years to come if you came to an agreement together. You will lose a fair amount of the stress that comes along with allowing a third party stranger (i.e. a judge) decide how much time the children should spend with you and your ex-spouse.
Remember, you can be creative. This is YOUR agreement. You and your ex-spouse know your situation better than anyone. You know how the logistics of any arrangement are going to play out. You know your children better than anyone and you know what types of arrangements are going to work for them.
Everyone's case is different and because of that, it would be wise to consult with an attorney who can listen to all of the facts of your case and your circumstances and provide advice on the best way to proceed in you custody or divorce case. Settlements are not always the best for each individual case and you should certainly not settle a case if you do not believe it is your best interest or your children's best interests.
If you would like more information or a consultation on a divorce of custody case, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Monday, February 10, 2014
Custody: Do you understand the role of the guardian ad litem (GAL)?
Custody cases can be complex, emotional and just plain difficult for a lot of people. Aside from the emotions and practical challenges of dealing with a court case, you have to figure out who is who and what their role is.
Guardians ad litem are appointed in a lot of custody cases, especially those where the mom and dad are unrepresented and do not have an attorney. If you have an attorney, your attorney should explain the role of the guardian ad litem. If you do not have an attorney, the guardian ad litem should explain his/her role. However, things that should be done are not always done and sometimes there is just a disconnect between one person's explanation and the other person's understanding.
Here's a brief overview of the role of the guardian ad litem, or GAL, in custody cases.
The GAL represents the child in the case. This is a very similar relationship that you, as an adult, would have with an attorney. The GAL's role, however, is slightly different, in that sense. When you are represented by an attorney, with some limitations, that attorney MUST do what you want him to do. He MUST advocate for what you want. A GAL, on the other hand, does an independent analysis of what is in the best interests of the child. The GAL MUST advocate for the best interests of the child, even if the child says he wants something different. Similarly, when you are represented by an attorney, again with few limitations, any communication between you and that attorney MUST remain confidential. A GAL, however, may disclose those confidential communications if he finds it is in the best interests of the child. For example, if the child says, "don't tell anyone but my mom/dad/brother hurts me", it is likely in the best interests of the child that the GAL alert appropriate parties and obtain help for the child.
Another aspect of the GAL's role is to provide a recommendation to the judge on how he/she should rule. This recommendation is formed after a thorough independent investigation and review of the case. A judge can only consider the evidence before the court (which does not include things such as hearsay). The GAL, however, may consider all information obtained in his/her investigation. The Court is not required to follow the GAL's recommendation, but many times the Court puts significant weight on the GAL's recommendation.
Finally, it is the role of the GAL to explain the court proceedings to the child. The GAL should talk with the child before court and explain the roles of each party, what the court proceedings will be like, etc. This explanation will vary greatly depending on the age, maturity and education level of the child. An important duty involved in this role is to talk with the child after the conclusion of the case and explain to the child what the outcome of the case is: is he now going to be living with mom, will he see dad every weekend instead of every other weekend, etc.
This is a brief overview of the role of the GAL. The specifics of how a GAL carries out his responsibilities and duties depends, in large part, on the specific circumstances of the case. If you are involved in a custody case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Guardians ad litem are appointed in a lot of custody cases, especially those where the mom and dad are unrepresented and do not have an attorney. If you have an attorney, your attorney should explain the role of the guardian ad litem. If you do not have an attorney, the guardian ad litem should explain his/her role. However, things that should be done are not always done and sometimes there is just a disconnect between one person's explanation and the other person's understanding.
Here's a brief overview of the role of the guardian ad litem, or GAL, in custody cases.
The GAL represents the child in the case. This is a very similar relationship that you, as an adult, would have with an attorney. The GAL's role, however, is slightly different, in that sense. When you are represented by an attorney, with some limitations, that attorney MUST do what you want him to do. He MUST advocate for what you want. A GAL, on the other hand, does an independent analysis of what is in the best interests of the child. The GAL MUST advocate for the best interests of the child, even if the child says he wants something different. Similarly, when you are represented by an attorney, again with few limitations, any communication between you and that attorney MUST remain confidential. A GAL, however, may disclose those confidential communications if he finds it is in the best interests of the child. For example, if the child says, "don't tell anyone but my mom/dad/brother hurts me", it is likely in the best interests of the child that the GAL alert appropriate parties and obtain help for the child.
Another aspect of the GAL's role is to provide a recommendation to the judge on how he/she should rule. This recommendation is formed after a thorough independent investigation and review of the case. A judge can only consider the evidence before the court (which does not include things such as hearsay). The GAL, however, may consider all information obtained in his/her investigation. The Court is not required to follow the GAL's recommendation, but many times the Court puts significant weight on the GAL's recommendation.
Finally, it is the role of the GAL to explain the court proceedings to the child. The GAL should talk with the child before court and explain the roles of each party, what the court proceedings will be like, etc. This explanation will vary greatly depending on the age, maturity and education level of the child. An important duty involved in this role is to talk with the child after the conclusion of the case and explain to the child what the outcome of the case is: is he now going to be living with mom, will he see dad every weekend instead of every other weekend, etc.
This is a brief overview of the role of the GAL. The specifics of how a GAL carries out his responsibilities and duties depends, in large part, on the specific circumstances of the case. If you are involved in a custody case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Sunday, February 9, 2014
Is it possible to legally separate while living in the same house as your spouse?
In Virginia, as with all states, the laws surrounding divorce are constantly evolving and adjusting. As I have discussed in previous posts, in order to finalize a divorce, the parties must live separate and apart for a period of six months, or 1 year, depending on the circumstances. This can be very difficult for families who are on limited income and/or have a lot of expenses.
Slowly, the courts have started to recognize the idea of separation while living in the same house. Whether the court finds that you have lived separate and apart, despite living in the same house, is extremely fact based, meaning there is no bright line and the courts look at each case differently. Because of this, it is very important that you consult with a lawyer for the best chances of the courts finding that you lived separate and apart for the required period of time.
Some things the Court will look at and you should be doing to ensure your legal separation are:
Slowly, the courts have started to recognize the idea of separation while living in the same house. Whether the court finds that you have lived separate and apart, despite living in the same house, is extremely fact based, meaning there is no bright line and the courts look at each case differently. Because of this, it is very important that you consult with a lawyer for the best chances of the courts finding that you lived separate and apart for the required period of time.
Some things the Court will look at and you should be doing to ensure your legal separation are:
- Absolute, complete sexual abstinence (one incidence can restart the clock)
- Separate bedrooms
- Separate bank accounts
- Separate meals, grocery shopping, laundry, etc.
- No outings as a couple (including church, meals, etc.)
- Inform family and friends of the separation
- Have a close family member or friend come to the home periodically to observe you and your spouse living separate and apart
- Act as roommates, not as spouses
Tuesday, January 7, 2014
Divorce - What to expect from an initial consultation
The Holiday season is over and for some is was a wonderful time of year. For others, it may have been a touch time of year. If you are one of those who had a tough holiday season and are thinking about speaking with an attorney about the divorce process, here is what to expect from an initial consultation:
1) How much does it cost?
Some attorneys offer free or discounted rates for initial consultations. Some attorneys put that information on their website. If it's not available online, a quick phone call to their office will typically answer that question.
2) How long will the meeting last?
Ask this question when scheduling your initial consultation. Most attorneys tend to schedule their initial consultations for 30 min. or 1 hour.
3) What do I need to bring?
While it would be great for you to bring a lot of documentation, it is hard at the beginning of the process to locate all of the documentation. Some of the documentation that attorneys will need to begin representation are: financial documents showing your assets, how they are titled, etc., any written agreements you and your spouse may have entered into (pre-separation, post-separation, pre-nuptial, etc.), information related to your children (age, gender, etc.). Most attorneys have a client information form they will ask you to fill out which will provide them with the majority of that information. The documentation backing up that information will be needed at some point, but not necessarily at the initial consultation.
NOTE: If you do not retain the attorney you meet with or have not yet decided whether you will retain that attorney, you should ensure that you keep originals of your documents and let the attorney keep copies for their records.
4) What questions should I ask?
You will want to gather as much information about the attorney at your initial consultation. You should ask questions about fees and charges, who much money is required up front (retainers), what all is covered by those fees and retainers, how long the process is expected to last, how quickly the attorney responds to communications from clients, how they typically approach divorce cases (do they tend to encourage settlements or do they tend to fight it out in court?), etc. It's best to ask questions at the beginning to ensure you and the attorney understand each other and agree on how to proceed. Communication is extremely important in litigation, especially in divorce cases.
5) What should I expect after meeting with an attorney?
The answer to this depends on how the meeting went. If you retained the attorney and paid the retainer fee, you should expect communication in the near future about what additional information and documents the attorney may need. If this is the case, you should ensure that you and the attorney understand what the next step is and when that step will be taken.
If you did not retain the attorney, the attorney will likely follow up with you to determine if you have decided to proceed with your divorce. It may be helpful if you let the attorney know a time frame within which to touch base with you. If you know at the end of the consultation that you do not intend to proceed with that attorney, you can let that attorney know your intentions to avoid any follow up calls.
NOTE: Remember, you always have the right to fire your attorney and seek alternate representation.. There may be consequences to doing so depending on the stage of your divorce. You always have the right to seek independent advice.
Initial consultations can be intimidating if you do not know what to expect. These are just some of the basics that many attorneys follow but is not a guarantee. You can always call the attorney's office and inquire as to that attorney's initial consultation practices before making an appointment.
If you would like a consultation with our office, please call (804) 447-0146 or email us at clbaudean@baudeanlaw.com.
1) How much does it cost?
Some attorneys offer free or discounted rates for initial consultations. Some attorneys put that information on their website. If it's not available online, a quick phone call to their office will typically answer that question.
2) How long will the meeting last?
Ask this question when scheduling your initial consultation. Most attorneys tend to schedule their initial consultations for 30 min. or 1 hour.
3) What do I need to bring?
While it would be great for you to bring a lot of documentation, it is hard at the beginning of the process to locate all of the documentation. Some of the documentation that attorneys will need to begin representation are: financial documents showing your assets, how they are titled, etc., any written agreements you and your spouse may have entered into (pre-separation, post-separation, pre-nuptial, etc.), information related to your children (age, gender, etc.). Most attorneys have a client information form they will ask you to fill out which will provide them with the majority of that information. The documentation backing up that information will be needed at some point, but not necessarily at the initial consultation.
NOTE: If you do not retain the attorney you meet with or have not yet decided whether you will retain that attorney, you should ensure that you keep originals of your documents and let the attorney keep copies for their records.
4) What questions should I ask?
You will want to gather as much information about the attorney at your initial consultation. You should ask questions about fees and charges, who much money is required up front (retainers), what all is covered by those fees and retainers, how long the process is expected to last, how quickly the attorney responds to communications from clients, how they typically approach divorce cases (do they tend to encourage settlements or do they tend to fight it out in court?), etc. It's best to ask questions at the beginning to ensure you and the attorney understand each other and agree on how to proceed. Communication is extremely important in litigation, especially in divorce cases.
5) What should I expect after meeting with an attorney?
The answer to this depends on how the meeting went. If you retained the attorney and paid the retainer fee, you should expect communication in the near future about what additional information and documents the attorney may need. If this is the case, you should ensure that you and the attorney understand what the next step is and when that step will be taken.
If you did not retain the attorney, the attorney will likely follow up with you to determine if you have decided to proceed with your divorce. It may be helpful if you let the attorney know a time frame within which to touch base with you. If you know at the end of the consultation that you do not intend to proceed with that attorney, you can let that attorney know your intentions to avoid any follow up calls.
NOTE: Remember, you always have the right to fire your attorney and seek alternate representation.. There may be consequences to doing so depending on the stage of your divorce. You always have the right to seek independent advice.
Initial consultations can be intimidating if you do not know what to expect. These are just some of the basics that many attorneys follow but is not a guarantee. You can always call the attorney's office and inquire as to that attorney's initial consultation practices before making an appointment.
If you would like a consultation with our office, please call (804) 447-0146 or email us at clbaudean@baudeanlaw.com.
Wednesday, December 11, 2013
How to get through the holidays during a divorce
Everyone who is separated and going through a divorce with children faces the major issue of making it through the holidays. Here are a few tips to make sure your holidays are as peaceful as possible.
Agree. If at all possible, put your emotions aside and come to a visitation/custody agreement for the holidays. It is extremely tough, but you should do it. Your entire family especially the children, will have a happier, more peaceful holiday season if mom and dad can come to an agreement about how to handle that season. Focus on your children rather than your soon to be ex-spouse.
Put it in writing. Once you've come to the agreement, put it in writing with as much detail as possible. Include pick-up and drop-off times and locations. Include a daily phone call with the other parent. Include what will happen in case of an emergency.
Be prepared for questions. You will likely get questions from your children about why the whole family is not together on Christmas day or New Years eve. Talk with your spouse, if at all possible, and try to agree on how you will both handle those questions. Leave the name calling and negative comments for conversation with your mom or best friend, not in front of your children. If you and your spouse can come across as a united front on how to handle these types of questions, it will hopefully make life a little easier for your children.
Cherish your time with your children. If you agree that the children are with your ex-spouse on Christmas day, it may be a tough day emotionally for you. Please don't let that interfere with the time you are with your children, like Christmas eve. Make the moments you have your children with you special for all involved and remember those moments when your children are with the other parent.
Baudean Law, PLLC wishes you all the happiest of holidays even if you are going through a tough time. We are happy to help you work through the details of a holiday visitation agreement. We can be reached at clbaudean@baudeanlaw.com or (804) 447-0146.
Agree. If at all possible, put your emotions aside and come to a visitation/custody agreement for the holidays. It is extremely tough, but you should do it. Your entire family especially the children, will have a happier, more peaceful holiday season if mom and dad can come to an agreement about how to handle that season. Focus on your children rather than your soon to be ex-spouse.
Put it in writing. Once you've come to the agreement, put it in writing with as much detail as possible. Include pick-up and drop-off times and locations. Include a daily phone call with the other parent. Include what will happen in case of an emergency.
Be prepared for questions. You will likely get questions from your children about why the whole family is not together on Christmas day or New Years eve. Talk with your spouse, if at all possible, and try to agree on how you will both handle those questions. Leave the name calling and negative comments for conversation with your mom or best friend, not in front of your children. If you and your spouse can come across as a united front on how to handle these types of questions, it will hopefully make life a little easier for your children.
Cherish your time with your children. If you agree that the children are with your ex-spouse on Christmas day, it may be a tough day emotionally for you. Please don't let that interfere with the time you are with your children, like Christmas eve. Make the moments you have your children with you special for all involved and remember those moments when your children are with the other parent.
Baudean Law, PLLC wishes you all the happiest of holidays even if you are going through a tough time. We are happy to help you work through the details of a holiday visitation agreement. We can be reached at clbaudean@baudeanlaw.com or (804) 447-0146.
Monday, November 4, 2013
How long until my divorce will be final?
Once you have decided to separate from your spouse (see earlier post about speaking with an attorney prior to separation), your divorce proceedings will begin and you will likely be anxiously anticipating the resolution of those proceedings.
The amount of time it takes to resolve your divorce depends on a lot of factors. The biggest factor is each party's position about the divorce. Does one spouse want the divorce and the other does not? Do both spouses want custody of the children? Do both spouses want certain properties? The more issues that the parties disagree on, the longer it will take to resolve the divorce.
Here's a brief timeline (ESTIMATE) of divorce proceedings. This is only an estimate and the actual timeline will vary in each and every case. At any point in time, if the parties fully agree on issues, they can form an agreement and avoid court hearings.
Upon separation, you can request a pendente lite hearing after which the judge can make temporary determinations and awards. These can include who will have custody of the children pending the resolution of the divorce, who will pay the mortgage, if one spouse is to pay another spouse any money pending the resolution of the home, who will have exclusive possession of the marital home, etc. This will likely take place within a few months of your separation. While it is ideal to have this hearing as soon as possible, it depends largely on the court's schedule and the length of time needed for the hearing.
If you do not have minor children, after 6 months of separation and the execution of a property settlement agreement, the parties can submit the Final Decree of Divorce for entry. Depending on the judge's docket, that decree could be entered within a week or it may take a couple of months before it is entered. If there are issues with the evidence in the case or any of the pleadings, the Court will not sign the Final Decree of Divorce until those issues are resolved and the decree is ripe to be entered.
If you have minor children OR you do not have a property settlement agreement, you can submit the Final Decree of Divorce for entry upon the expiration of one year from the date of separation.
If you do not have a property settlement agreement and there is property to be distributed or other issues to be decided (support, custody, etc.), you will need to set a hearing for the Court to determine resolution of these issues. These hearings can last a couple of hours or last multiple days. Scheduling of this will depend in large part on the court's schedule. However, you should expect at least 3 - 6 months from the time you are ready to set the hearing before the hearing will actually occur. Once all issues have been decided by the court and upon the expiration of one year from the date of separation, you can submit the Final Decree of Divorce for entry.
From the date of separation, your divorce may be final anywhere from 6 months to a couple of years later. At the beginning of your separation, an attorney can give you a vague estimate about the length of time they expect your divorce to take. However, as the case proceeds, that estimate may change significantly. Regardless, when separating from your spouse you should be mentally and emotionally prepared for the divorce case to take a significant amount of time to resolve.
The amount of time it takes to resolve your divorce depends on a lot of factors. The biggest factor is each party's position about the divorce. Does one spouse want the divorce and the other does not? Do both spouses want custody of the children? Do both spouses want certain properties? The more issues that the parties disagree on, the longer it will take to resolve the divorce.
Here's a brief timeline (ESTIMATE) of divorce proceedings. This is only an estimate and the actual timeline will vary in each and every case. At any point in time, if the parties fully agree on issues, they can form an agreement and avoid court hearings.
Upon separation, you can request a pendente lite hearing after which the judge can make temporary determinations and awards. These can include who will have custody of the children pending the resolution of the divorce, who will pay the mortgage, if one spouse is to pay another spouse any money pending the resolution of the home, who will have exclusive possession of the marital home, etc. This will likely take place within a few months of your separation. While it is ideal to have this hearing as soon as possible, it depends largely on the court's schedule and the length of time needed for the hearing.
If you do not have minor children, after 6 months of separation and the execution of a property settlement agreement, the parties can submit the Final Decree of Divorce for entry. Depending on the judge's docket, that decree could be entered within a week or it may take a couple of months before it is entered. If there are issues with the evidence in the case or any of the pleadings, the Court will not sign the Final Decree of Divorce until those issues are resolved and the decree is ripe to be entered.
If you have minor children OR you do not have a property settlement agreement, you can submit the Final Decree of Divorce for entry upon the expiration of one year from the date of separation.
If you do not have a property settlement agreement and there is property to be distributed or other issues to be decided (support, custody, etc.), you will need to set a hearing for the Court to determine resolution of these issues. These hearings can last a couple of hours or last multiple days. Scheduling of this will depend in large part on the court's schedule. However, you should expect at least 3 - 6 months from the time you are ready to set the hearing before the hearing will actually occur. Once all issues have been decided by the court and upon the expiration of one year from the date of separation, you can submit the Final Decree of Divorce for entry.
From the date of separation, your divorce may be final anywhere from 6 months to a couple of years later. At the beginning of your separation, an attorney can give you a vague estimate about the length of time they expect your divorce to take. However, as the case proceeds, that estimate may change significantly. Regardless, when separating from your spouse you should be mentally and emotionally prepared for the divorce case to take a significant amount of time to resolve.
Wednesday, September 4, 2013
Annulment v. Divorce
So your marriage isn't working out, how do you know if you should pursue an annulment or a divorce?
The grounds for an annulment are significantly narrower than grounds for a divorce. To oversimplify things for the purposes of this post, an annulment basically voids the marriage like it never existed. A divorce simply terminates the marriage. Most of the time, people who are seeking to get out of a marriage are going to go down the divorce path rather than pursue an annulment. However, there are situations in which an annulment may be appropriate.
In oversimplified terms, the grounds for annulment are: if there was no marriage license, if either party was still married to another person, marriage between a brother and sister, marriage between an uncle/niece type relationship, marriage when either party is under 18, lack of consent (because of mental incapacity or infirmity), if either party was a convicted of a felon and the other did not know, if wife was pregnant with another man’s baby and husband did not know or vice versa, if either party had been a prostitute without the other knowing, fraud, duress. If after obtaining knowledge of any of the above, the parties continue to live together and/or act as a married couple, annulment will likely not be an option.
Divorce, on the other hand, can be decreed for a multitude of reasons including that the parties simply had irreconcilable differences and separated (though there are minimum separation requirements prior to obtaining a divorce on this ground). Divorce is typically a longer process and may be more complicated, though not necessarily.
If you are unhappy in your marriage and are looking to terminate it, consult with an attorney to determine the best possible process for you to pursue.
The grounds for an annulment are significantly narrower than grounds for a divorce. To oversimplify things for the purposes of this post, an annulment basically voids the marriage like it never existed. A divorce simply terminates the marriage. Most of the time, people who are seeking to get out of a marriage are going to go down the divorce path rather than pursue an annulment. However, there are situations in which an annulment may be appropriate.
In oversimplified terms, the grounds for annulment are: if there was no marriage license, if either party was still married to another person, marriage between a brother and sister, marriage between an uncle/niece type relationship, marriage when either party is under 18, lack of consent (because of mental incapacity or infirmity), if either party was a convicted of a felon and the other did not know, if wife was pregnant with another man’s baby and husband did not know or vice versa, if either party had been a prostitute without the other knowing, fraud, duress. If after obtaining knowledge of any of the above, the parties continue to live together and/or act as a married couple, annulment will likely not be an option.
Divorce, on the other hand, can be decreed for a multitude of reasons including that the parties simply had irreconcilable differences and separated (though there are minimum separation requirements prior to obtaining a divorce on this ground). Divorce is typically a longer process and may be more complicated, though not necessarily.
If you are unhappy in your marriage and are looking to terminate it, consult with an attorney to determine the best possible process for you to pursue.
Wednesday, August 14, 2013
Pondering divorce? May want to meet with an attorney ASAP
Are you pondering a divorce? If you are seriously thinking about divorcing your spouse, you may want to meet with an attorney as soon as possible.
Meeting with an attorney is confidential and by no means translates into having absolutely decided to divorce your spouse. During you decision making process, an attorney can provide a great deal of guidance and advice relating to not only the divorce process, but also the effects after the divorce, the timing of leaving your spouse, the manner of leaving your spouse, etc.
It is at this time, the decision making process and the initiating of the divorce, that many people make mistakes that can hurt them legally during the divorce process. An attorney can help you determine how to "separate" depending on your financial situation, the incomes of you and your spouse, your children's situations, etc. so that you are protecting your legal rights down the road. For instance, you may not want to leave the marital residence if that is where your children are residing, depending on the totality of the circumstances. You also may believe you can't afford a divorce financially. An attorney can help you understand your different options to determine if there is a way to afford a divorce. Another example: if you leave your spouse, you may be setting yourself up for your spouse to divorce you based on desertion (again, depending on the totality of the circumstances).
Attorney's are not just there for the actual divorcing of you and your spouse, they can help you prior to your separation, during the separation and divorce, as well as after the divorce. If you are contemplating a divorce, you may be smart to go ahead and meet with an attorney who can help you navigate this tough time.
Meeting with an attorney is confidential and by no means translates into having absolutely decided to divorce your spouse. During you decision making process, an attorney can provide a great deal of guidance and advice relating to not only the divorce process, but also the effects after the divorce, the timing of leaving your spouse, the manner of leaving your spouse, etc.
It is at this time, the decision making process and the initiating of the divorce, that many people make mistakes that can hurt them legally during the divorce process. An attorney can help you determine how to "separate" depending on your financial situation, the incomes of you and your spouse, your children's situations, etc. so that you are protecting your legal rights down the road. For instance, you may not want to leave the marital residence if that is where your children are residing, depending on the totality of the circumstances. You also may believe you can't afford a divorce financially. An attorney can help you understand your different options to determine if there is a way to afford a divorce. Another example: if you leave your spouse, you may be setting yourself up for your spouse to divorce you based on desertion (again, depending on the totality of the circumstances).
Attorney's are not just there for the actual divorcing of you and your spouse, they can help you prior to your separation, during the separation and divorce, as well as after the divorce. If you are contemplating a divorce, you may be smart to go ahead and meet with an attorney who can help you navigate this tough time.
Thursday, June 6, 2013
Spousal Support in Virginia
Spousal support is one of the first thing many people think about when they are getting a divorce: Will I get any? How much? Will I have to pay spousal support?
Spousal support, in Virginia, is not guaranteed to a spouse upon a divorce. There are many, many factors that a court must take into account and consider before awarding spousal support. These factors include, but are not limited to standard of living during the marriage, duration of the marriage, monetary and non-monetary contributions to the well being of the family, earning capacity, etc.
Due to the variety of the factors, it is impossible to predict if a court will award spousal support and if they do award spousal support, how much. Each case is different and even with similar facts, judges may weigh certain factors differently than other judges which could result in very different decisions. This is one reason many people attempt to negotiate a spousal support agreement rather than ask the court to decide.
If you are serious about wanting to pursue spousal support, you should contact an attorney immediately as it is an issue that you could unintentionally waive very early on in the process if you are not careful.
Spousal support, in Virginia, is not guaranteed to a spouse upon a divorce. There are many, many factors that a court must take into account and consider before awarding spousal support. These factors include, but are not limited to standard of living during the marriage, duration of the marriage, monetary and non-monetary contributions to the well being of the family, earning capacity, etc.
Due to the variety of the factors, it is impossible to predict if a court will award spousal support and if they do award spousal support, how much. Each case is different and even with similar facts, judges may weigh certain factors differently than other judges which could result in very different decisions. This is one reason many people attempt to negotiate a spousal support agreement rather than ask the court to decide.
If you are serious about wanting to pursue spousal support, you should contact an attorney immediately as it is an issue that you could unintentionally waive very early on in the process if you are not careful.
Thursday, January 10, 2013
Determining custody in Virginia
In Virginia, we have a standard called the best interests of the children for determining custody. This means when a court has custody before it, whether it's through a divorce proceeding or otherwise, the Court must look at what the best interests of the children are before they determine the custody and visitation arrangements.
Now the question is, what does "best interests of the child" mean?
Virginia has a statute setting out what factors should be considered in determining the best interests of the children. The Courts MUST consider all of the following factors: age and physical and mental condition of each child, age and physical and mental condition of each parent, the relationship between the child and the parent, the needs of the child, the role that each parent has played and will play in the upbringing of the child, the propensity of each parent to promote the relationship between the child and the other parent, the ability and desire of each parent to maintain a close relationship with the child, the preferences of the child, if reasonable and appropriate, any history of family abuse and any other factor the court deems necessary.
These factors, theoretically, should provide an overall picture of the child's life and environments with both parents. Custody is always a difficult issue; however, I hope this provides some insight into what a judge takes into account when deciding the custody arrangement for your children.
Now the question is, what does "best interests of the child" mean?
Virginia has a statute setting out what factors should be considered in determining the best interests of the children. The Courts MUST consider all of the following factors: age and physical and mental condition of each child, age and physical and mental condition of each parent, the relationship between the child and the parent, the needs of the child, the role that each parent has played and will play in the upbringing of the child, the propensity of each parent to promote the relationship between the child and the other parent, the ability and desire of each parent to maintain a close relationship with the child, the preferences of the child, if reasonable and appropriate, any history of family abuse and any other factor the court deems necessary.
These factors, theoretically, should provide an overall picture of the child's life and environments with both parents. Custody is always a difficult issue; however, I hope this provides some insight into what a judge takes into account when deciding the custody arrangement for your children.
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