Virginia Divorce Legal Questions

The answer is yes, you can divorce someone with dementia.  The way we do this is to have a Guardian ad Litem appointed to protect your husband's interests.  It's the same process we use all the time with spouses who are incarcerated and therefore also legally incapacitated.  The GAL is another lawyer who is appointed by the court and will do what they believe is in your husband's best interest (not necessarily what he says he wants - like lawyers representing clients are required to do).  This does not mean they can stop the divorce; you will still be able to divorce him.  It might just take a little longer than usual, since the GAL needs an opportunity to look into the situation.  You woudl be responsible for paying for the GAL as well as your own lawyer.  One complication may be who is going to manage your husband's share of any marital funds or assets and these would probably need to be set up in trust for him.  You may need to seek guardianship and conservatorship, if you have not already, which you may have been able to get away without, being his spouse, but probably not as an ex-spouse.  As you can see there are going to be many layers complicating this.  Many people simply date before they are officially divorced and while adultery is technically still a crime in Virginia it is almost never prosecuted.  So while I would not be able to advise you to break the law I can tell you that in this instance it would definitley be the easier path.  I'm pretty sure God and any other judges would understand. ... Read Answer

Technically the lawyer can do this because it is a different case than the one between you and your prior spouse.  It's not an actual conflict, but it is pretty frowned upon to file a suit against a former client.  But the very fact that you say he represented both of you in the first divorce indicates that this attorney is playing fast and loose with the rules of ethics.  He could not have represented both of you as your lawyer.  He could only have acted as a mediator, if he is qualified to do so.  I think it is more likely that he actually represented your ex-husband and considered you the adverse party, but failed to make that clear to you.  Lawyers can get in a lot of trouble for that.  He should have made it clear which one of you he was representing and he could not provide legal advice to the other.... Read Answer

If your spouse is incarcerated then he is considered legally incapacitated and would have to have a guardian ad litem appointed on his behalf to protect his interests.  This is true even if he is not contesting anything in the divorce.  Appointing a GAL is not complicated, but it would probably be worth it for you to just hire a lawyer to take care of this for you.  It doesn't have to be expensive, if there is no property in dispute.  But you woudl be responsible for the GAL fees, as well.  A preliminary question is whether you last lived together in Virginia or in California.  Because, if California, then you probably need to file there.  While he could consent to jurisdiction in Virginia it might make things more complicated for the GAL to contact him.  May be best to do the divorce in California.  But if you have no connection to California it could be done here. ... Read Answer

Although I'm a Maryland divorce lawyer, I can share some general guidance. If you're considering separation or divorce, it’s important to consult with a family law attorney in your area who can help you navigate the legal process, particularly when marital conflicts involve complex family dynamics. An attorney can assist with separation agreements, property division, and ensuring your rights are protected as you work toward a resolution. Or, in the event of no agreement, a competent attorney can make sure you have your ducks lined up in the event of litigation. Don't wait until the last minute like most people, be proactive now.... Read Answer

You can check the Virginia statewide case information system to see if a case has been filed.  Only Fairfax and Alexandria Circuit Courts are not included.  Just select your county and click Civil and put in your name to search for any cases filed against you.    Here is the link: https://eapps.courts.state.va.us/CJISWeb/circuit.jsp... Read Answer

If you don't know your spouse's current whereabouts you can still divorce him by giving legal notice by publication in the newspaper.  This will not help you get support from him or any of the property that is in his name.  If you are seeking support or marital property from him then you are going to have to find him so that you can formally serve him with the divorce papers.  There are private investigation services who can help track people down, but if he is overseas you would probably have to find out what kinds of PI services like that are available there.... Read Answer

You can always file for child support as long as the children are minors.  It is not a right that can be waived, regardless of what your separation agreement says.  This is because it is a right that belongs to the children, not to you, so you have no contractual authority over it. ... Read Answer

To avoid having your case dismissed, or losing valuable rights, it is probably best to meet with an attorney to learn the rules. A number of people represent themselves in divorce cases but most have consulted with a lawyer so they knew the rules.  If there are significant issues (custody, visitation, support, property division) that need to be resolved, it is probably best to consult with an attorney before attempting to move forward.  Best of luck~... Read Answer

The quick answer is that you can't kick your husband out of the marital home.  Even if it's only in your name and even if you are the only one paying all of the bills.  Once you live there together during the marriage it becomes the marital home.  In order to terminate this marriage you are going to need grounds for divorce - either a one year separation (six months if you don't have kids together and can get him to sign a property settlement agreement) or fault grounds, such as adultery, cruelty, or desertion.  If you don't have any of those grounds then you may have to move out of your own home for a year in order to get your one year separation, then you can ask to be awarded the house in the divorce.  Once the divorce is final you could evict him, as he would no longer be your husband.  The other option is to try to complete yout separation under the same roof, but this is not usually advisable because it requires a higher level of proof that you are really separated - that is, you would need a witness who is very familiar with the living situation.  I have been able to get divorces done this way, but the witness has to be really good - like a tenant, a nanny, or some other person who is practicially living in the home with you.... Read Answer

The grant or denial of support is a matter of discretion with the court.  The Judge will take into consideration your needs and your spouse's ability to pay when making a decision regarding an award of support. The court will also review all of the statutory factors, which are relevant to a spousal support determination. I suggest that you confer with an experienced family law attorney in your area to discuss this matter in greater detail.  Lawyers generally charge by the hour.  Therefore, you need to discuss fees upfront to avoid any confusion regarding payment, when scheduling your consultation.  All the best~... Read Answer

Cases are resolved by agreement or litigation.  By agreement, a settlement involves an agreement between the parties.  If the parties are unable to reach an agreement regarding disposition of assets, it will be up to the court to decide the issue.  If a party seeks to purchase the interest of the other and the value of the property is not in dispute, it is highly possible that the court will allow the buyout.  However, it is not possible to fully respond to this question without knowing all of the facts.  For example, are there issues regarding the value of the property? Is the property marital property or part marital/part separate.  Where there any pre-marital contributions to the purchase of the house? The facts in each case will control the outcome.  Therefore, in order to protect your interest you need to confer with an experienced family lawyer to discuss this matter in greater detail. Lawyers charge by the hour.  Please discuss fees in advance for an initial consultation to avoid misunderstandings.  All the best~... Read Answer

Call the lawyer's office to see what is happening.  A lot of people, including lawyers, are being infected with covid, so you need to get to the bottom of what is taking place.  Further, when a lawyer files a Complaint is usually decided between the client and the lawyer.  It can vary from a few days to a month or more, depending on what was decided by the lawyer and his client. Call the lawyer and find out if there is a problem.  If so, maybe, you want to go with someone. Best of luck~... Read Answer

Most lawyers are conducting interviews via telephone or webcam these days as a proper protocol for covid.  I suggest that you call around to see if you can find someone that you are comfortable speaking with and make arrangements for a telephone consult. Please note that most lawyers charge by the hour for office consults.  Therefore, you need to discuss fees in advance of setting up a meeting to avoid any misunderstandings. Best of luck~... Read Answer

Your question cannot be answered in this forum without more information.  For example, where did the two of you last live together as husband and wife?  Have you ever lived in SC?  If so, did you live there while you were married?  Has your husband ever lived in Virginia? If so, did he live in Virginia during the marriage? Did he file in SC?  If spousal support is in dispute, the court must have personal jurisdiction to award spousal support. As to who will receive support, that will depend on a number of statutory factors, including need and the ability of a spouse to pay.   I suggest that you meet with a lawyer to discuss this matter in greater detail. Lawyers charge by the hour, therefore, you should discuss fees and expenses upfront to avoid any misunderstanding regarding fees.  Best of luck~... Read Answer

Generally, there is no requirement that an agreement is notarized to be legally binding.   Unless there is a statute specifically requiring that an agreement be notarized, the agreement between the two of you would appear to be valid and enforceable.  You are seeking legal advice.  Lawyers.com offers general information and not legal advice. You need to consult with an experienced family lawyer in your area to discuss all of the facts that are relevant and explore your options, which may include enforcement of the agreement.    Most lawyers charge by the hour for consultation.  Therefore, when contacting a lawyer to discuss your rights, you need to discuss fees and costs to avoid any confusion or misunderstanding.  Best of luck~ ... Read Answer

Lawyers.com offers general information and not legal advice.  You need legal advice and need to consult with an experienced family lawyer in your area to discuss your case in greater detail. Most lawyers charge by the hour for an initial consultation, therefore, you need to discuss fees and rates before scheduling a meeting.  Best of luck~... Read Answer

Your spouse cannot evict you from the marital home because you are not a tenant.  As a spouse you have a right to reside in the marital home, unless and until a court awards your spouse exclusive use and possession of the home.  This can ordinarily only be done pursuant to a divorce.  If there are no grounds for divorce, then she cannot file.  Another way to have a spouse removed from the marital home is in cases of domestic violence where a protective order is granted. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

I am not sure what you are asking.  If a Complaint for divorce was filed and a request was made for child and spousal support, the party requesting support may ask that it is retroactive to the date of filing/service. It matters not that a hearing has not been set.  Once the case is heard that is when the court will decide the issue of retroactive support. Best of luck~  ... Read Answer

Technically, a child born during a marriage is presumed to the child of the husband.  However, if your husband does not claim any rights to the child, your son would not normally become a subject of the divorce case.  If your husband claims legal rights to the child, such custody/visitation, you have to request a paternity test and challenge his right to seek such relief.  Lawyers.com offers general information and not legal advice.  It is recommended that you confer with an experienced family lawyer in your area to discuss this matter in greater detail, based upon all facts in your case.  Lawyers charge by the hour for their time, therefore, you need to discuss fees prior to setting up an appointment to avoid any misunderstandings about the cost of a consultation.  Best of luck~... Read Answer

Lawyers.com offers general information and not legal advice. You are asking for specific information, which cannot be provided unless you provide additional information.  You need to consult with a family lawyer in your area to discuss this matter in greater detail. Most lawyers charge by the hours, therefore, you need to discuss fees and cost for an initial consultation before setting up a meeting.  Best of luck~... Read Answer

Lawyers.com offers general information and not legal advice.  You are asking for legal advice, which cannot be provided without additional information.    There are rules governing the disposition of property and you must have a clear understanding of those rules to know and protect your rights.  You need to meet with an experienced family lawyer in your area to discuss all relevant facts in your case regarding the division of marital property in the Commonwealth of Virginia. Please note that most lawyers charge by the hour, therefore, you need to discuss payment arrangements before setting up a meeting to avoid any misunderstandings.  Best of luck~... Read Answer

Hello, I am not sure if I understand what you mean by "papers will be signed on the 23rd of June."  When you say papers are you talking about an agreement or a court order? If an agreement is signed, this raises several other questions, such as has the Complaint been filed with the Court.  If so, how do you plan to present evidence to the court?  Will it be via deposition, ore tenus, or affidavits?  Are there any outstanding issues? Or, have you resolved all issues? Unfortunately, your question cannot be answered without additional information.  It may be in your best interest to meet with a family lawyer in your area to discuss the matter in greater detail.  Lawyers charge by the hour, therefore, you need to work out the details of the payment before you set up the appointment.  Best of luck~... Read Answer