Virginia Divorce Legal Questions

The cost of a divorce can vary widely depending on the issues involved in each case.  In your case because you are the sole breadwinner, it is likely that your spouse will seek spousal support from you.  If you cannot reach an agreement on support and other property issues, there will have to be a court hearing, which can require a lot of preparation.  Most lawyers will charge by the hour for this type of work and it will ordinarily run into the thousands of dollars or even tens of thousands, depending on how much is at stake and how hard the parties want to fight.  On the other hand, uncontested divorce cases can often be done for a flat fee, ranging anywhere from $750 to $1,500.  This is where both parties are in full agreement on all issues. 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. ... Read More

In order to obtain a divorce in Virginia by publication in the newspaper, a party must verify under oath one of two things:  either he does not know where you reside and has used due diligence to try to locate you or he knows that you are not a resident of Virginia.  The notice will also be sent by registered mail to your last known address.  If you do not respond to the court by the return date listed in the legal notice, then he proceed to divorce you.  However, you have two years in which to reopen the divorce when it is done by publication.   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. ... Read More

In order to obtain a no-fault divorce in Virginia, you do have to be separated for at least one year OR six-months if you have no children and sign a written property settlement agreement.  Once the separation period is over, the divorce itself can be done as quickly as within a few weeks, if both parties are cooperative.  While it is possible to claim a separation while you are still living in the same home, I recommend against it.  It can be difficult to prove and you risk that your divorce will not be granted and you will have to start all over again.  Every divorce in Virginia must be corroborated by an independent witness and so it really comes down to how good your witness is about verifying the living situation.  If you share one address, the witness must be someone who visits regularly or who lives in the house, such as a roommate, relative, or tenant.  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.  ... Read More

The grounds for divorce in Virginia fall into two categories - fault and no-fault.  The no-fault grounds for divorce are living separate and apart for at least one year with the intention that the separation is to be permanent or if you have no children and both parties sign a written property settlement agreement, then the separation period is six months.  It does not matter what the reasons are, as long as you live separate and apart for the requisite time period, that gives you grounds for divorce. The fault-based grounds for divorce include adultery, cruelty, and desertion.  These do no require a separation period before filing the divorce, although all but adultery require you to be separated for a year before the divorce can actually be finalized.  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. ... Read More

You cannot force your spouse out of the marital home, except in rare circumstances.  I have had some clients who even owned the home prior to the marriage, but in order to complete their separation, they themselves moved out of the residence and stayed somewhere else until the house was awarded to them in the divorce.  You may have to consider doing that.  It is possible to ask for exclusive use and possession of the marital home in a divorce, but in order to file for divorce you have to have grounds for divorce, which is usually a six-month or one-year separation period, unless you have fault grounds, such as adultery, cruelty, or desertion.  The other way that spouses can be removed from the marital home is pursuant to a protective order in cases of domestic violence.  I have had clients who tried to claim they were separated while still living in the same house, but that is very difficult to prove and you would need a very good witness to verify the living situation.  I generally recommend against trying that. 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.... Read More

If you established an account prior to your second marriage, and it was funded only prior to the second marriage, a court would likely find that it is your separate money, and the second wife would have no claim to that account.  If the account was funded in part during the second marriage from your earnings, than it is either wholly marital, or if you provide a proper accounting of which parts were premarital and which parts were marital, then the court could find it part separate and part marital, and your second wife would have no interest in the separate part.  If you contend it is not your money, and you were holding it in trust for a third party,  you would need to show that you did not treat it as your own. Consult your lawyer for details.     This answer is given in accordance with the laws of Virginia, and is based on the facts that are recited, and assumptions which may or may not be accurate. Accordingly, this response may not be relied upon and may not be applicable in any other state. It should not be relied on as legal advice, as that would require a detailed analysis of all of the facts involved in a specific case, not just the limited facts presented in the question.  ... Read More

In Virginia, if at the time you "married" your wife, she was already married to another man and had not been granted a divorce,  Virginia would say your marriage to her was void - meaning it is not a valid marriage.  Should you decide you want to be legally married to her, she must get divorced from her prior husband and you would then have to go through another wedding ceremony.  I do not know what procedure is followed in the DR ,  but in Virginia, a marriage is ended by a decree of divorce from a court.  Your situation occurs from time to time, often when a person such as you goes to get a divorce. When it comes out that your "wife" was married to another man at the time of your marriage, the Virginia Court will refuse to grant you a divorce, because you are not "married" to your wife.  You will likely want to discuss this further with a lawyer since there are related issues such as how this impacts your ownership rights should she and you own a house together, and what your rights are to other property acquired during your "marriage".     This answer is given in accordance with the laws of Virginia, and is based on the facts that are recited, and assumptions which may or may not be accurate. Accordingly, this response may not be relied upon and may not be applicable in any other state. It should not be relied on as legal advice, as that would require a detailed analysis of all of the facts involved in a specific case, not just the limited facts presented in the question.... Read More

If his name is on the title to the vehicle, the simplest ways to get if off are for him to sign, which you say he won't do, or to have the loan company sell the car to enforce their lien.  If you had the money to do so, you would contact the loan company and have the note sold to a third party - such as family friend.  Your girlfriend would then stop paying the note, your friend would then exercise the right under the note to sell the car.  You would need a lawyer to look at the note to make sure it has the correct language, and look at a copy of the certificate of title to make sure that the loan company, and in turn your friend, would have the right to sell upon default, and if the documents allow it, your friend could sell it to your girlfriend for the amount owed on the note.  Another option is for your girlfriend to stop making payments, but that could impact her credit, and she would be liable for the deficiency after it is sold.    This answer is given in accordance with the laws of Virginia, and is based on the facts that are recited, and assumptions which may or may not be accurate. Accordingly, this response may not be relied upon and may not be applicable in any other state.  It should not be relied on as legal advice, as that would require a detailed analysis of all of the facts involved in a specific case, not just the limited facts presented in the question.    ... Read More

The divorce will not get completed on its own, unless you do something to finish it.  Simply filing the initial papers with the court will do nothing to get you divorced.  In cases where a spouse cannot be located, they typically must be served with legal notice by publication in the newspaper in order for you to proceed and finalize the divorce.  This is assuming your wife is no longer incarcerated.  Incarcerated persons must have a Guardian ad Litem appointed by the court to represent their interests.  In addition, you must prepare a Final Order for Divorce.  The court will not prepare it for you.  And a final hearing must be completed, which can often be done out of court by deposition.  All of these things can be completed quickly and easily by an experienced divorce attorney, so I would highly recommend that you consult with one.    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.      ... Read More

In any marriage where one spouse has been supporting the other, the spouse in need of support can ask for it upon separation.  Whether or not you will receive spousal support (often called alimony) will depend on a number of factors, including the length of the marriage, the needs of both parties and the ability of the higher earning spouse to pay support.  With a short-term marriage, such as yours, you will typically get only short-term support in order to help you establish your own household and become self-sufficient. All of the factors to be considered in determining spousal support are laid out in Virginia Code section 20-107.1: 1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature; 2. The standard of living established during the marriage; 3. The duration of the marriage; 4. The age and physical and mental condition of the parties and any special circumstances of the family; 5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home; 6. The contributions, monetary and nonmonetary, of each party to the well-being of the family; 7. The property interests of the parties, both real and personal, tangible and intangible; 8. The provisions made with regard to the marital property under § 20-107.3; 9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity; 10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability; 11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market; 12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and 13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties. 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. ... Read More

If you did not sign as a guarantor or co-signer on either of the loans, then the third-party financing companies cannot hold you liable for these debts.  If your husband has been paying these bills during the marriage, it would be highly unusual for a judge in a divorce to order you to pay them now.  You did not state your income, but if it is substantially more than your husband, you could be ordered to pay him spousal support from which he could pay these debts.  If you are the one using the house and car, then you may have to pay for them or risk losing them or their being foreclosed or repossessed.  It is difficult to advise you without further information. 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. ... Read More

Short answer:  No.  If both parties are in agreement as to all potential issues, as divorce can be granted after a six-month separation, as long as there are no minor children and the parties sign a written property settlement agreement.  If there are minor children or no written agreement, the parties must wait for a one-year separation period before filing for a no-fault divorce.  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.  ... Read More

Short answer:  No.  If both parties are in agreement as to all potential issues, as divorce can be granted after a six-month separation, as long as there are no minor children and the parties sign a written property settlement agreement.  If there are minor children or no written agreement, the parties must wait for a one-year separation period before filing for a no-fault divorce.  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. ... Read More

In theory, there are several grounds for divorce in Virginia that do not require the mandatory separation period.  For instance, divorces can be filed on grounds of adultery, cruelty, or desertion without waiting to be separated for a certain period of time.  However, because these constitute contested fault-grounds for divorce that will require a hearing to prove, it takes longer to get to a final hearing.  Divorces filed after a six-month (no kids, written settlement agreement) or one-year separation, on the other hand, can be expedited in the court, as long as both spouses are in agreement on all issues.  And all grounds, except adultery, require that the parties be separated for the requisite period before the divorce can actually be finalized.  That, plus the fact that adultery is almost impossible to prove, means that there is really no way around the waiting period. 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. ... Read More

You are correct that because she is now considered a legally incapacitated person, she is entitled and you are required to have a Guardian ad Litem (GAL) appointed to protect her interests.  If you have not already, you will need to file a Cross-Complaint for divorce, so that you can be the one to divorce her.  You cannot move forward on her Complaint alone.  If you are past the deadline to file a Cross-Complaint, you will need to seek leave of court to do so.  The GAL will be given time to contact her and file a report with the court before you can proceed to a final hearing.  How you will proceed will largely depend on what this report states and whether she is seeking anything from you in the divorce.   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. ... Read More

Any property you brought into the marriage is considered your separate property and not subject to equitable distribution in a divorce.  It remains your separate property, so long as you did not do anything to co-mingle it with marital property.  For instance, if a mortgage was still owed on it and you paid this mortgage with income earned during the marriage, this would transmute the property into a hybrid of part-separate and part-marital.  However, since you specified that the property was paid in full prior to the marriage, this should not be an issue.  Likewise, if you made improvements to the property with marital funds, this could open the door to your spouse making a claim on it.  If there has been nothing like that, then it should remain your separate property. 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. ... Read More

If the divorce is already final, it is a little late to start dividing up marital property, including a business. Since it sounds like you are co-owners, then you remain co-owners after the divorce and the fact that you were ever married becomes irrelevant.  It will depend on what type of business entity it is - a partnership, an LLC, a corporation, etc. - and how you structured your shares of the business.  I would recommend that you repost your question under corporate law with additional information about how the business is titled and any agreements you had.  It is no longer a divorce or family law issue. 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. ... Read More

Unlike other types of negligence, legal malpractice is treated like a breach of contract and therefore the statute of limitations in Virginia is five years if you had a written contract with the attorney and three years if the agreement was oral.  Even without an order preventing dissipation of assets it is difficult to believe that such a large sum of money could have been spent without some assets to show for it, which could then be divided in equitable distribution, or without being considered waste.  In any event, it sounds like you may have a claim against either your spouse or your lawyer or both. 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. ... Read More

These two terms are usually used interchangeably.  However, the term "family law" can encompass a lot of other issues beyond divorce, such as child custody and child support between parents who were never married or are already divorced.  Family law could also include prenuptial agreements, protective orders in cases of domestic violence, and other issues short of a divorce.  But family law definitely includes divorces.  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. ... Read More

Ordinarily you must file for divorce where at least one of the parties currently lives.  Each state has its own residency requirement of how long you must reside there before filing for divorce. For instance, in Virginia, you must be an actual bona fide resident and domiciliary of Virginia for at least six months before filing for divorce here.  That means that for that period of time you both lived in Virginia and considered Virginia to be your permanent home.    There are special exceptions for service members, however those generally only apply when they are stationed overseas or on a ship at sea.  In those cases, the last state that he was stationed in could be considered his state of residency.  Since neither of you lives in CT any longer, I do not see how you could file for divorce there.  You could have filed just prior to moving, but it is probably too late now.  You would need to check with an attorney in CT to be sure of their residency requirement.  Since you just recently moved to Virginia, that means you cannot yet file here either, until you have lived here for six months.  You are in legal limbo as far as filing for divorce.  However, issues of custody and support can be addressed separately short of a divorce, if necessary.  Those issues would ordinarily be brought in the Juvenile and Domestic Relations District Court for the county in which the children live. 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. ... Read More

I don't think this is a legal question as much as a question you need to ask your phone company.  If it is possible for you to access the account to print out the text messages, then I think you can do it.  It largely depends on whether you are privy to her password and if you are, whether she knows that you have it.  If she knows you can access her account then she has no reasonable expectation of privacy.  If however, you do not have access to her account, then you need to ask yourself why you feel compelled to view your wife's text messages and why she would want to hide them from you.  If you are not contemplating a divorce, it sounds like marriage counseling is in order. ... Read More

It does not matter which state you were married in, a divorce must be obtained where at least one of the parties currently resides.  The residency requirement in Virginia is six-months, meaning that one of the parties must be a bona fide resident and domiciliary of Virginia for at least six months prior to filing for a divorce in Virginia.  If you now reside in South Carolina, then you would have to file for divorce there or where your spouse resides.  Each state has its own residency requirement. If you are incarcerated that adds an additional layer of complication to the case, because incarcerated people are considered to be legally incapacitated, just as if you were a child, mentally deficient, or inebriated.  This means that generally you cannot file or respond to lawsuits on your own behalf, with the exception of legal actions pertaining to your incarceration, such as petitioning for Habeas Corpus.  You must have a Guardian ad Litem appointed by the court to represent you.  This is done pretty routinely when the nonincarcerated spouse is the one filing for the divorce, but I have honestly never seen the incarcerated spouse be the one to file. 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. ... Read More

Because your husband was still married to someone else at the time, your marriage is null and void.  Many people like to get an annulment, so that the paperwork in the vital records office is straight and for other reasons, such as making changes to health care coverage, but it is not required.  Also, when there are property issues involved, an annulment may be necessary to straighten out what belongs to whom.   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. ... Read More

The divorce will require his input to complete, but it can be done by deposition upon written questions, where he fills out his responses on paper, has it notarized, and then sends it back here.  This can usually be done in place of a final hearing in court.  Then he will just need a witness here in Virginia to corroborate the information contained in his divorce pleadings.  You must be very careful in what you try to do on his behalf because although you may have his power of attorney, you cannot act as an actual attorney at law, or you may be guilty of practicing law without a license.  It would be best to consult with an experienced family law attorney to determine what the problems are with the paperwork, the best way to fix it, and how to proceed from there.  Many attorneys will offer free consultations in domestic relations cases.  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. ... Read More

  You can file for divorce in either state, as long as one of you meets that state's residency requirement.  The other party may object to jurisdiction, if they have no connection with that state.  So the safest course of action is to file in the last place you lived together.  However, in some cases, this is not possible if both parties have moved to other states and no one currently resides in that state.  In Virginia, you must be a resident for six months before filing a divorce.  For a no-fault divorce, you must either be living separate and apart from your spouse for one year prior to filing for divorce or you can file after a six-month separation, if you have no children and you have a written property settlement agreement signed by both parties.  The process for the divorce can be divided into four basic steps:  1. Prepare and file a Complaint for divorce.  2. Serve the other party with the Complaint.  This is often accomplished by the other spouse signing a waiver of service.  3. Submitting a Final Order for approval by the court.  4. Conducting a final hearing.  This is often done by deposition in the lawyer's office.  Steps 3 and 4 are often done in reverse order.  Hiring an experienced attorney who has worked through this procedure many times will make the whole process go much faster and avoid the many potential pitfalls along the way.  In cases where both parties are in agreement on all issues, the divorce itself can often be completed within only a few weeks, after the required separation period has been completed. 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. ... Read More