Virginia Divorce Legal Questions

I am not sure I understand your question.  If, however,  your inquiry relates to an uncontested divorce, it is as the name suggests, a divorce where all issues have been resolved. If, on the other hand,  there are issues in dispute, i.e. custody, support, property, the divorce is deemed to be contested. All cases are resolved either by agreement of the parties or judicial resolution.  Lawyers.com offers general information and not legal advice.  If you have specific questions, it is suggested that you confer with an experienced family lawyer in your area.  Best of luck~... Read More

That's an interesting question.  Ordinarily, even if the child was born prior to the marriage the act of marrying "legitimizes" the birth and it is considered a child of the marriage.  I think if you were saying that the child is NOT your husband's child then it would be different, but it seems you are acknowledgin that it is your husband's child, even if no paternity test has been done.  It's something you could try to argue to the judge, but is it worth it?  You could go through the time and expense of filing for divorce only to have your case dismissed and have to wait another six months if the judge doesn't buy your position.  I'm honestly not sure if anyone has tried to argue this before.  In any event, you would need a written property settlement agreement that resolves any issues beteween you in order to file a diovrce after a six month separation.  Have you and your husband resolved all issues?  If not, then this question is moot.  I'm leaning toward thinking you have a valid argument, but I would still recommend waiting until you have a one year separation rather than risk it. ... Read More

In order to divorce you he would have had to provide you legal notice, so either he served papers on you somehow and you were not aware of it - perhaps he had them posted on the door of an old address and you were no longer there - or he could have noticed you by publicaiton in the newspaper if he said that he did not know where you were living or you were living out of state.  If he served you by publication you have 2 years in which to reopen the case and address any property or support issues.  You can also hae a case reheard within 2 years if there has been a fraud on the court.  So if he served you at a bogus address I'm not sure if that would qualify, but it might.  Since you are still just within that 2 year window you will want to act quickly.  However, the fact that you have been living without spousal support for the past year-and-a-half would seem to indicate that you don't need it.  You usually have a better chance of getting alimony if you ask for it right away and you'll have to explain why you did not.  But it should not bar you gettnig it, if you truly need it and he has the ability to pay.  ... Read More

When you physically separated from your spouse with the intention that the separation would be permanent you become legally separated for purposes of seekig a divorce in Virginia.  You do not have to do anything to formalize it, although many people enter into Separation and Property Settlement Agreements.  You would need a written agreement like that if you have no kids and want to get divorced after only a six month separation.  Otherwise, if you have no written agreement or if you have kids you have to wait a full year of being separated in order to file a no-fault divorce.  You can file sooner if you have fault grounds, such as adultery, cruelty, or desertion, but these typically do not get you divorced any faster, as you must then go through the contested litigation process and have a full trial to prove your grounds. Aftere your separation period you can file for divorce and at your final hearing, which can usually be done by deposition or affidavit these days, you will testify under oath about the date of your separation.  You will need a witness who can verify the date of separation.  So in terms of what you can do now to document your separation, the best thing you can do is think about who your witness will be and make sure they are familiar with your living situation, so that they can personally observe that you are not living with your spouse. In the meantime you can try to negotiate any financial issues, but you can't force the other side to settle.  If you need monetary support you can file for that in the Juvenile & Domestic Relations District Court at any time following separation, without having to have grounds for divorce.  If you have children, yuo can also file for custody, visitation, or child support in the JDR Court.  Any property issues that can't be worked out will have to be decided in the divorce court (Circuit Court).... Read More

There is no automatic spousal support in Virginia.  The court must look at a variety of factors in determining how much support to award and for how long.  There is a general rule of thumb that if you were married for more than 10 years you could be looking at lifeime support, but even that is not automatic and could depend on your abiility to pay and her ability to improve her own earning potential, among other things.  With a 21-year marriage, if you were the primary breadwinner and supporting her throughout the marriage then there is a very good possibility you will be ordered to pay lifetime support, which means until one of you dies or she remarries or lives in a relationship analogous to marriage for more than one year.... Read More

The short answer is 'yes', you can get a divorce even if the other spouse does not want to be divorced.  There used to be a time when a person was not allowed to get a divorce without the consent of the other spouse, but that was a long time ago.  However, you should be aware that it might be costly and take a longer time.  I have had divorce cases that took 6 years to complete because the other side kept using delay tactics, which also increased the costs to both spouses.  I have also had cases where there was initial push-back but where the other spouse finally realized that the marriage was over and the divorce was actually completed in a relatively short period of time.  It really all depends on the people and the specific situation. I really suggest you have a consultation with a divorce attorney in your area to find out more about the laws of Virginia and how they would pertain to your circumstances.  ... Read More

Inheritances are separate property and not subject to division with a spouse, but you need to keep it separate.  I would recommend opening a new separate account to put the money into so there can be no question that it is your separate asset.  If you deposit it into your regular account where you might also deposit your paychecks, then you have comingled the money which could allow your spouse to make a claim on it.  You should still be able to trace it out and if you can do so then you can still argue that it's your separate property.  But better not to get into all of that.  Just keep it separate from the beginning and you should have no problem. ... Read More

To obtain a divorce you must file a Complaint for Divorce, have it served on your spouse or have your spouse sign a waiver of service.  Then you must provide the court with a proposed Divorce Order and complete a final hearing, which can be done in court, by deposition, or affidavit.  Because of all the things that can be done wrong at any stage of this process I highly recommend that you hire a lawyer to do it for you.  You should be able to find a lawyer to do it for a reasonablel fee.  For instance I typically charge a $750 flat fee if there are no issues of support or property.  People hire me all the time to fix the mistakes they have made on their own and it is always more work than if they had just hired me in the first place.  We usually have to redo everything they have done and start over, as well as dismissing or amending the current case, which create the extra work.... Read More

I'm not sure what your question is, but it seems that you have a realistic view of how things will be resolved.  Anything that you acquired during the marriage is presumably marital and will most likely be split 50/50, although in Virginia the court has some discretion about that, if the two of you cannot agree  But it generally comes out 50/50.  Splitting custody 50/50 can be a little trickier, unless the two of you can agree to it, because most judges will feel that the child needs one primary home.  You will want to be sure to try to work that out with the mother rather than to to court, unless you want a full-fledged custody battle.  You will want to find a lawyer close to where you are located to discuss working out a settlement. ... Read More

You can dispute the date and potentially have the divorce dimissed.  But it won't stop him from divorcing you eventually.  For a no-fault divorce you must be separated for at least a year or if you have no chidren and a written property settlement agreement then you must be separated for at least six months.  If he is lyign about that date that could be a fraud on the court.   I'm not sure where you are at in this process, so it's difficult to advise you beyond that.... Read More

It is really your spouse who needs to worry because she is the one who has committed the crime of bigamy, not you.  Because your marriage was void from the beginning, you do not necessarily even need to get a divorce or annulment.  The reasons to do so would be if you have joint property you have acquired that needs to be divided by the court or just to clear up the vital records.  If you can't afford a lawyer to do this for you, you may want to check with your local bar association or legal services office to see if they can help you.  Your local Circuit Court may also be able to provide you with the necssary forms to try to do it yourself.  If you don't know where your spouse is, you would have to serve her with notice by publication in the newspaper, which again the clerks should be able to give you the forms to do.  But unfortunately if you can't find her the the court cannot do much about any property issues, which is leading me back to thinking that you may not want to bother with this.  Plus she has two years in which to come back to the court and revisit any property issues.  ... Read More

Your spouse cannot kick you out of the marital home.  If they file a divorce they can ask the court for exclusive use and possession of the home, which could force you to leave, but this is ordinarily only granted in cases of domestic violence or other extreme circumstances.  They could also stop paying the rent or mortgage, if they are willing to ruin their credit, and that could force you out.  But you should be able to seek child and spousal support from them to pay those expenses.... Read More

A written separation agreement is not required for an uncontested divorce. However, you must wait 12 months for the divorce if you don't have one. To shorten that time in half (6 months), you must have no minor children and a separation agreement. Additionally, even if you don't have a separation agreement, there must be no further disputes between you and your spouse, concerning custody, support, property, etc., for it to be considered uncontested. Jim Childress Childress Law Firm, PC Rustburg, VA... Read More

Lawyers.com offers general information and not legal advice.  It is not possible to fully address your concern without  a complete case history.  It is recommended that you confer with an experienced family lawyer in your area and make specific inquiries about your Husband's retirement, which you may have a marital interest therein.  Also, if you have been married more than 10 years, the Social Security Administration may allow you to claim credits based upon your spouse's work history if he was the primary wage earner in the family. This may increase the amount of your monthly annunity. Please contact a lawyer and set up a consultation so you can discuss your legal rights in greater details.  Best of luck~... Read More

Lawyers.com offers general information and not legal advice.  Please confer with an experienced family lawyer to discuss the following: 1) Grounds for divorce; 2) Temporary Relief available, i.e. child/spousal support; freezing assets, contribution to debts, visitation/custody, legal fees, etc. 3) What happens once a divorce is filed: how long does the process take; 4) Is it possible to reach an agreement to resolve all issues once a divorce has been filed? 5) How to proceed if you cannot afford a lawyer? It is highly recommended that you contact an experienced family lawyer in your area to discuss your rights and all options that are available, as part of the process.  Best of luck~... Read More

Laywers.com offers general information and not legal advice.  Due to the highly specific nature of your inquiry, it is recommened that you confer with an experienced family lawyer in your area to inquire about the following: a) Grounds for Divorce in the Commonwealth of Virginia; b) Legal requirement for living separate and apart under the same roof; c)  Steps that must be taken to inititate a divorce action; d)  What if any forms of temporary or pendente lite relief is available to a spouse once a Complaint for Divorce is filed. ie.,  spousal support, child support, freezing assets, attorney's fees, etc.,  Time is of the essence and you should take immediate steps to contact an attorney for purposes of protecting your interest.  Best of luck~  ... Read More

In Virginia there is not technically a way to become legally separated.  Rather, a judge, when divorce papers are submitted asking for a divorce based on separation, must decide whether or not the couple meets the legal criteria. A judge must determine whether the couple has "lived separate and apart without cohabitation" for the required length of time.  What each of those terms means depends somewhat on the judge.  That is, the judge has some amount of flexibility in determining whether a couple has lived separate and apart and whether they have cohabited.  If both parties to the divorce assert in the pleadings that they have been separated, and have not cohabited, and if that information is corroborated by a witness, the judge will likely find they meet the criteria and will not need to look further into the issue.  If either party asserts that they have not been separated, then the judge will look into the issue further by determining whether the couple has lived in separate residences, whether they have had marital relations, etc. ... Read More

Annulments in Virginia are only granted in certain limited circumstances, such as your spouse was a felon or prostitute prior to the marriage without your knowledge, impotence, incompetence, and other types of void marriage, like incest or bigamy.  You should talk to a lawyer about your particular situation to determine if you have grounds for an annulment.  Otherwise you will probably have to seek a simple divorce.... Read More