Virginia Divorce Legal Questions

The answer will depend on how the property was titled with your wife, either by tenants by the entirety, joint tenants with rights of survivorship, or tenants in common.  Depending on how it was titled, you may not have been able to sign your rights in it over to your sons.  You really need to have an experienced real estate attorney review your deeds and a title search will most likely need to be done. 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 you and your spouse have already lived separate and apart for the required statutory period and you are in agreement on all issues, then a simple no-fault divorce can often be accomplished in just a few weeks, when done by an experienced attorney.  In Virginia, you must be separated at least one year before filing a no-fault divorce, or if you have no children you can file after a six month separation, but only if you have a written property settlement agreement (PSA) signed by both parties.  The PSA is also something an attorney can help you prepare.  As for whether you must be present, it depends on which county you file in.  Many counties will let you complete the final hearing by deposition, which means you never actually have to go to court.  Some counties will require your final hearing to be done in court.  We have open venue in Virginia, meaning you can file in whichever county you like, as long as the other side does not object, so you should discuss these options with your lawyer.   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 will need to check with a North Carolina licensed attorney to find out what their residency requirements are to file a divorce there.  Every state is different.  Here in Virginia, you must actually reside here AND consider yourself a "domiciliary" of Virginia (meaning you consider Virginia to be your permanent home) for at least six months prior to filing for divorce here.  Also if your spouse has no ties to the state you live in, he could object to jurisdiction there.  The safest place to file to avoid that is either the last place of marital residence, where you cohabitated together or where your spouse lives.  It sounds like you may be eligible to file for divorce here in Virginia.  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

Yes, you should keep your wife on your health insurance, unless and until she is able to affordably get her own or until you are divorced.  If you remove her from your coverage, you could potentially be liable for any out of pocket medical costs that she incurs.  Under the "doctrine of necessities" spouses are legally responsible to provide for each other's basic needs.  Remember that she is still your spouse until a divorce is final.  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

It does not necessarily matter who pays the bills associated with the marital home because spouses have a duty to support each other during a marriage and sometimes beyond.  Unless and until one party has been granted exclusive use and possession of the premises by a court order or by agreement of the parties, you cannot exclude the other spouse from access to the marital home.  In cases of domestic violence, for example, a spouse can be banned from the property by a protective order.  Also in a situation such as yours, where it sounds as if she has abandoned the home, you may be successful in obtaining a court order, pursuant to a divorce, that would grant you exclusive use and possession of the property, making it unlawful for her to return. 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 first step for any divorce is to establish your grounds for divorce.  The most common ground for divorce in Virginia is a separation in excess of one year.  This is a no-fault cause of action that does not require the showing of any wrongdoing on the part of the other spouse.  If you have no minor children together, you are eligible for a divorce after only a six month separation, but in order to pursue that you must have a written property settlement agreement signed by both parties.  The other common fault-based grounds for divorce are adultery, cruelty, and desertion.  Assuming that you do not have one of these fault grounds or you do not wish to pursue a contested divorce, then the first thing you must do in order to begin the divorce process is to physically separate from your spouse.  This can give rise to a claim of abandonment or desertion, which may impact your ability to seek spousal support (or alimony) from your spouse.  No matter which type of divorce you decide to pursue or whether you are already separated or not, the first step should always be to consult with an attorney about your rights.  Many lawyers will offer free consultations for divorce matters.  Because you are a military family, you may be able to avail yourself of the services of the JAG office.   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 courts in Virginia look at the value of marital property as of the date of the final divorce hearing.  However, a motion can be made to change the date of valuation to a different date for a variety of reasons.  The date of separation is determined by when the parties physically separated from one another - which generally means they moved in separate residences - with the intent of at least one of the parties that the separation would be permanent.  Then there cannot be any interruption to the separation or any further cohabitation during the statutory separation period (usually for one year, unless there are no minor children AND a written property settlement agreement, in which case it is six months), if the parties wish to seek a divorce.  No further documentation of the separation is needed, other than the testimony of one party and a corroborating third-party witness. 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

There is no hard and fast rule in Virginia.  Spousal support (often called alimony) can be awarded starting at the date of separation, so at that point the judge would look at the length of marriage until separation, but that would only be for temporary support.  At the time of the final divorce hearing, the judge could easily consider the entire length of the marriage up until that date.  But it really does not really matter, since the judge can award whatever he or she considers to be fair.  The length of marriage is only one of many factors the court will take into account and is not determinative of the amount or length of spousal support.   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 opposing counsel represents your spouse and does not have to do anything to make your job easier.  While attorneys will often accept service for their clients, there is no requirement that they do so.  If you had a lawyer representing you, the other attorney would probably not play this game because they know that your attorney would figure out how to get your spouse served and also out of professional courtesy.  But you do not have any kind of claim against the other attorney for doing his or her job of zealously protecting the client's interests.    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 best way to bring a halt to the trip and have an opportunity to be heard on whether he can take the child is to file a petition with the juvenile and domestic relations court of the county in which you live with the child. Depending on how quickly the trip is approaching, you may need to file a petition for an emergency hearing. That way you can try to get the hearing before the trip. This will also give you the opportunity to go before the court and explain why you do not think he should take the child, he will have the chance to tell the court why he should and the court will make the decision. If the two parties cannot reach some kind of agreement as to these types of decisions, a hearing before the court is usually the best option. You should consult with an attorney in your area regarding your rights in this matter. You will likely need representation in filing and arguing the petition.... Read More

There are several different types of "consequences" to lying in any complaint or court filing. According to Rule 11(b) of the federal rules of civil procedure, any pleading filed with the court must be signed. That signature is the signer's assurance that the statements in the pleading are true. If it turns out that the statements were not true the court has the right to impose sanctions on that party, including fines, and other things.  There are also some practical effects of false statements in a divorce. Depending on what the statement was, a false statement in a divorce can change the divorce from uncontested to contested. A divorce that was granted by a court based on a false statement may be susceptible to being reversed at a later date. The person making the false statement could also be exposing themselves to a separate action in fraud.... Read More

In Virginia, a person can get a divorce relatively easily if the married couple has been separate for more than one year, and the other party does not object to the divorce. If there is no objection by the other party, and they have been apart for as long as your question indicates, then your mother can get what is called an uncontested, no fault divorce. First, you must draft and file the divorce complaint. Then you must serve notice on the other party and give them a chance to respond. Then they have to have a witness testify to the fact that they have been living separate and apart for at least one year in a deposition. Then the deposition has to be filed with the court. After the court receives all this material, it is just a matter of time before the divorce is granted, the order is sent out to the parties and notice is sent to the department of vital records. ... Read More

In Virginia, the Courts typically will typically rely on the testimony of a witness who knows the couple and has personal knowledge of the fact that the two have lived separate and apart. Ultimately, you will have difficulty proving that there was no cohabitation if you are not able to establish that you had two separate addresses. In fact, it is near impossible. As a practical matter, it is easier to prove there was no cohabitation if you establish two separate residences for a year and have a witness who can testify to that. But seek the advice of counsel for more specific guidance on your situation.... Read More

Your divorce decree provides the answer for you - it says you must mutually agree on a realtor.  This means that your ex-husband cannot force you to use an agent you do not agree on.  Let him take you to court.  Or you can file a motion first.  If the two of you cannot resolve this issue yourselves, then court is where you need to be to in order to have a judge decide for you.  Do not be afraid to use the legal process.  That is what it is there for.  Since your terms are reasonable and you are entitled to have a realtor you are comfortable with, you should prevail with the judge.  Your worst case scenario is that he gets to keep his realtor, so you really have nothing to lose.  In some instances you could be made to pay his attorneys fees if he wins, but I think this is a low risk, since you are acting in good faith. 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

No, you do not need to be separated from your spouse first in order to file a divorce based on the ground of adultery.  In fact, adultery is the one ground by which the entire divorce can be completed without a required separation period.  So in theory your divorce could be granted faster in a case of adultery than in other cases.  Of course, this assumes that you could get through the court process for a contested divorce faster than you could a no-fault divorce, which is unlikely.  Adultery is extremely difficult to prove, but assuming you have a good faith basis to bring the claim, you could file for divorce right away on that basis. Another issue to be aware of is condonation, which means doing something to condone or forgive the adultery.  Typically, this is done by the act of resuming marital relations.  If you have had sex with your husband since learning of the adultery, then you have condoned it and can no longer use it as a grounds for divorce against him.  In addition, all adultery claims must be brought within five years of the adultery occurring, even if you did not know about it until more recently.  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

While there is no actual notice requirement for a marital separation, it could be considered desertion or abandonment if you did not consent to his leaving.  This would give you legal grounds for divorce or to seek spousal support, if he was supporting you during the marriage.  A claim for spousal support can be filed in your local Juvenile & Domestic Relations District Court or as a Separate Maintenance action in the Circuit Court.  Spousal support can also be requested pursuant to a divorce, but you don't have to file a divorce to get monetary support.  However, other property issues, such as division of retirement benefits or other assets would have to be determined in a divorce, if you are unable to settle it between the two of you.  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

Every state has residency requirements that require at least one spouse to be a current resident of that state for some length of time before you can file for a divorce there.  For instance, in Virginia, you must reside here for a least six months and consider Virginia to be your permanent home before you can file for divorce here.  If neither of you is currently living in Georgia, then you cannot file for divorce there.  It does not matter where you were married. The harder part is getting him out of your home.  You call it "your" home, but if he is your spouse, then it is his home, too.  It is very difficult to force someone out of the marital home against his will.  Once a divorce has been filed, you can move the court for exclusive use and possession of the marital home, but it will only be granted in extreme circumstances, such as domestic violence.  Some tactics I have seen my clients take are moving out the home themselves temporarily, in order to get the separation period started and allowing their spouse to continue residing there until the issue of whose house it is is resolved by the divorce court.  Or I have seen people sell the house out from under the other spouse, if it is in only one party's name, so that both parties are forced to move.  If none of these options sound appealing to you, you may have to find out what he wants and try to make him an offer he won't refuse in order to settle all of your 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.  ... Read More

You are in a legally tricky situation.  At least one of the parties must have residency in the state in which you file for divorce.  At this time it sounds like that would be Virginia for both of you.  Unfortunately, Virginia does not recognize your marriage as valid.  In fact, your marriage is considered null and void under Virginia law.  Virginia Code section 20-45.2 states: "A marriage between persons of the same sex is prohibited. Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable." If you have joint property that needed to be divided, we could do that in Virginia in accordance with the laws that govern unmarried persons.  But since you say you don't have any property in common or in dispute, there would be nothing to be done in Virginia.  You would have to file for divorce in a state that recognizes your marriage, but since you don't have residency in any of those states, you would not be able to file there. This type of marriage also does not qualify for an annulment in Virginia, which is a process available for some types of void marriages.   As far as Virginia is concerned, you are already unmarried single people and there is nothing further under the law you need to or can do. I question the constitutionality of the Virginia statute and it may be worth challenging, but it would be a long battle and probably futile in the current political climate in the Commonwealth of Virginia. 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

It sounds like the tax refund is clearly marital property that should be subject to equitable distribution in a divorce.  Any income that either of you earned during the marriage is marital income, so any refund of this income belongs to both of you.  How it should be divided is a question for your accountant and could ultimately be up to the judge in a divorce, if you cannot settle it between the two of you.  The money does not necessarily have to be given back to the person who earned it.  The judge can apportion is however he or she thinks is fair. 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 Virginia the most common grounds for divorce are having lived separate and apart from your spouse for at least one year or living separate and apart for six months if you have no children together AND you have a written property settlement agreement.  A divorce can be filed immediately, without a separation period, if you have fault grounds for divorce, such as adultery, cruelty, or desertion.  However, it is unlikely that such a fault based divorce would be completed any faster than a no-fault (separation-based) divorce, since you would have to go through the entire litigation process, including discovery and a full hearing in front of judge to prove the fault grounds. Assuming you already have completed your separation period, the divorce itself can be completed in as little as three or four weeks, if your spouse is cooperative with signing the paperwork.  If your spouse is not cooperating or you do not know where your spouse is, the divorce can still be completed, but it may take an extra month or two, depending on the situation.  If your spouse is contesting any issues, such as child custody, support, or property division, then you can expect the divorce to take as long as year or maybe even more.  Of course, all of these time frames are assuming that you have an experienced attorney handling your case.  People who try to handle their divorces themselves can expect it to take much longer as they fumble their way through the process and these people often end up in my office to fix the mistakes they have made. 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

It sounds like your sister's ex-husband is clearly in violation of the court order to pay spousal support and could be held in contempt of court.  Actually collecting the money could take time and could require a garnishment of his wages, among other things.  You probably want to file a Rule To Show Cause requesting that he demonstrate why he should not be held in contempt of court.  You are right that you probably want an attorney to assist with this. 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

Since you have no children together, you are eligible for a divorce after only a six-month separation.  In order to do this, you must both sign off on a property settlement agreement, even if the agreement simply states that you have no property together and that there is nothing in dispute.  Annulments are only granted in certain rare instances, such as if you discovered that she was a prostitute or felon prior to the marriage, or impotency, or that she was still married to someone else.   Depending on your case, there are so many little things that can go wrong in a divorce that is really worth hiring a lawyer to do it for you.  Many lawyers will charge a modest flat fee for a simple uncontested divorce.  That said, the basic steps of the process are as follows:  Step 1:  File a Complaint for Divorce - some counties may have sample forms you can use for this. Step 2:  Serve the other party.  This can be done by the Sheriff or a private process server, by publication in the newspaper if you do not know where the other party lives or if they reside out of state, or the other party can sign a Waiver of service. Step 3:  Have your Final Order for Divorce approved by the court.  Again, sample forms may be available in some counties.  Check with the clerks office or library of your local Circuit Court. Step 4: Conduct the Final Hearing.  A hearing must be done with you and a witness to verify all of the necessary information.  Sometimes Step 3 and Step 4 can be done in reverse order.  That is, you can either submit your final order for preapproval, along with a "Request for Ore Tenus" and then go to court for your final hearing or you can do your final hearing by deposition and then submit the paperwork afterwards to the court for review. If I've lost you at any point here, then you will understand why I encourage you to simply let a lawyer take care of this for you.  We do hundreds of these, so we know all the ins and outs of getting you through this process as quickly and easily as possible. 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

A divorce court can only divide marital assets and debts that currently exist.  So, if you still have the consolidation loan that you are paying back, then that is a debt that the court can allocate to either party or divide between the two of you.  If you have already paid back the loan, then there is nothing for the court to divide.  The court is not going to back in time to look at how money was spent during the marriage.    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

Depending on your case, there are so many little things that can go wrong in a divorce that is really worth hiring a lawyer to do it for you.  Many lawyers will charge a modest flat fee for a simple uncontested divorce.  That said, the basic steps of the process are as follows:  Step 1:  File a Complaint for Divorce - some counties may have sample forms you can use for this. Step 2:  Serve the other party.  This can be done by the Sheriff or a private process server, by publication in the newspaper if you do not know where the other party lives or if they reside out of state, or the other party can sign a Waiver of service. Step 3:  Have your Final Order for Divorce approved by the court.  Again, sample forms may be available in some counties.  Check with the clerks office or library of your local Circuit Court. Step 4: Conduct the Final Hearing.  A hearing must be done with you and a witness to verify all of the necessary information.  Sometimes Step 3 and Step 4 can be done in reverse order.  That is, you can either submit your final order for preapproval, along with a "Request for Ore Tenus" and then go to court for your final hearing or you can do your final hearing by deposition and then submit the paperwork afterwards to the court for review. If I've lost you at any point here, then you will understand why I encourage you to simply let a lawyer take care of this for you.  We do hundreds of these, so we know all the ins and outs of getting you through this process as quickly and easily as possible. 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

Yes, you can pursue this money in a divorce.  You may have to obtain documents from your wife or her banks that show where they funds have gone, but assuming you can trace it back to a marital account, then it should be considered marital property.  If the money is out of her control, however, because it is in the name of a third party, the court may find that she has "wasted" this marital asset and she could be ordered to pay you back your share or it would be deducted from any other property or assets she would otherwise be awarded in equitable distribution.  Be sure to keep any bank statements or other documents that show this money being withdrawn. 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