Virginia Divorce Legal Questions

Spousal support is based on your need and your spouse's ability to pay, along with a host of other factors under Virginia Code 20-107.1:  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-107.1  There are no set guidelines for spousal support the way there are for child support, but the court does use a formula for determining temporary support, so that is a good place to start.  When there are no minor children involved, you would take 30% of his income minus 50% of your income, so that should give you some idea of how much you may get.  There are many things that throw a wrench into this though, such as if one party is voluntarily underemployed or if one party is at fault 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.  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 More

WHAT???  That is nonsense.  We get people divorced all the time with no lawyer on the other side.    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 More

When you say that everything is shared during he marriage, that is true as to anything that is acquired DURING the marriage - so his income during those years and anything purchased with it is marital property.  But anything that he came into the marriage with remains his separate property, unless he did something to transmute it into marital property, such as commingling it with marital property.  In any event, you may be entitled to support, if he has been supporting you.  But with a short-term marriage, it will probably not be long-term 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.  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 More

Yes!  QDROs Qualified Domestic Relations Orders) can be entered at any time to provide for direct payment to you of your share of your ex-spouse's retirement benefits, assuming that you were granted your marital share in the divorce order. 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 More

That is a very good question!  Until recently, we could not do same-sex divorces in Virginia because Virginia law refuses to recognize your marriage.  But the Federal 4th Circuit Court of Appeals recently found that law unconstitutional.  I'm pretty sure that decision is on appeal to the U.S. Supreme Court, so I'm not sure if while the appeal is pending we can do same-sex divorces in Virginia or not!  We can try to find that out, but we may not need to if your spouse is still living in Maryland, you can obtain a divorce there regardless of where you live.  If you both live in Virginia, then we'll need to figure this out because at least one of you does have to reside in the state where you 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.  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 More

No, regardless of whose names are on the deed.  One spouse can never lock the other out of the marital home, without a court order.  So, I guess the question is whether this is the marital home, if you are no longer living there.  When is the last time you lived there?  Is your stuff still there?  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 More

No. 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 More

Yes, the speed of the divorce makes no difference.  Every state must give full faith and credit to court orders from other states under Article 4 of the United States Constitution. 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 More

Why do you want to file for divorce in Virginia if no one lives here anymore?  It does not matter where you were married; you must file for divorce where at least one of the parties has residency.  Every state has their own residency requirements.  For instance, in Virginia, one party must live here for at least six months before you can file for divorce here.  If your husband has met the residency requirement in Ohio, then contact an attorney licensed in Ohio and file for divorce there. 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 More

That question may largely depend on where you each were a the time of separation. Each state has different requirements regarding how long you need to live or be a resident there prior to filing (Virginia requires 6 months). Assuming, however, that your wife is the one who filed, that your wife was in Virginia at the time of separation, and filed for divorce in Virginia, you have a couple different options to start: 1) Contact the Circuit Court in the city in which you think that she filed (where she was living, where you last lived together as husband and wife or quite honestly, she could have filed in another city such as Norfolk Virginia where a large percentage of Virginia divorces are handled because of its reputation as the "rocket docket".) 2) Use the Virginia Court system website: http://www.courts.state.va.us/caseinfo/home.html to locate any pleadings that have been filed in the Circuit Court of any city or county in the state.... Read More

The name change can be done very simply as part of the divorce and will be granted at the same time that the divorce is granted.  There would be no reason for her to file a separate name change petition prior to that.  However, if she changes her mind and decides to keep your name, I do not think this provision of your separation agreement would be legally enforceable, as people are generally allowed to change their name to whatever they want.  She could change her name to match yours even if she had never been married to 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.  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 More

When you say he "agreed" to sell it, do you mean you have it in writing and he signed an agreement or do you mean that he just told you verbally that he would sell it?  If it is in writing, you should be able to enforce that, but if it was just verbal, you will not.  The only way to force a sale of property jointly owned between spouses is to have the court order it pursuant to a divorce.  i don't know how far along in the divorce process you are, but the determination of what happens with the marital home will not come until the very end.  In the meantime, since you can't force the sale, you may as well let him collect rent on it.  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 More

Half?  No.  However, if Joe made ANY payments toward the mortgage during the marriage, then he has transmuted the property from his sole property into a hybrid property - this is, part separate/part marital.  This is because income earned during the marriage by either party is considered to belong to both parties.  In this situation, if she makes a claim to a marital interest in the property then a calculation would have to be done to determine how much of the equity in the property is attributable to Joe's separate contribution (e.g. his down payment, any payment toward the principle from mortgage payments made prior to the marriage) versus how much is a marital contribution (e.g. any paydown in principle made during the marriage).  Since a large portion of the early mortgage payments goes to interest and not principle, the increase in equity from two measly mortgage payments is probably minimal and definitely not worth fighting over.  Still, I have seen many people wiling to pay more in lawyers fees to fight over something than what it is worth, despite my admonitions not to.   If, on the other hand, Joe paid cash for his house and made no payments during the marriage, then it would remain his sole and separate property, free from any claim by his spouse. 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 More

You have most of the correct forms, but there is more to it than simply filing them with the court.  At first, you only need to file the Complaint and the VS4 vital records form, along with the case cover sheet.  Some courts, like Prince William County, will not take the VS4 at the beginning of the case because they have converted to electronic filing and they have nowhere to hold it while the case is pending.  After filing your Complaint, you will have to show service on the other party.  The can be done by your spouse signing a Waiver of service.  But if they won't sign a waiver, other options include having them formally served by a Sheriff or private process server or providing legal notice in the newspaper, if you do not know where they are or if they live outside of Virginia.  Once you have good service, you will have to conduct a final hearing.  This can be done in court by an Ore Tenus hearing, in which case you need to submit your proposed Final Order for Divorce to the court for preapproval by submitting a Request for Ore Tenus with it.  Lawyers will typically do the final hearing by deposition in their office or by affidavit, rather than go to court.  If the wife wants to revert back to her maiden name, you would also need to submit a Name Change Order. Or for a small flat fee you could just hire a lawyer to take care of all of this for 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.  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 More

This is a very good question because children who are born during a marriage are legally presumed to be the husband's child.  But if he knows and acknowledges that it is not his husband, then is it still a "child of the marriage" that would need to be addressed in the divorce.  I don't think the answer to this question is clear, so when I am handling divorces with this issue I simply explain the situation and state that the child was born during the marriage, but is not a child of the marriage.  That way, you've covered it and are not concealing anything from the court.  Really all the judges are concerned about is whether there are custody, visitation, and child support issues that need to be determined in the divorce.  So assuming not, just inform the court in your written pleadings that there is nothing at issue pertaining to the child.   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 More

The court will look at a variety of factors pursuant to Virginia Code 20-124.3 to determine which parent should have custody.  https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-124.3  How long the divorce will take depends entirely on how much the two of you fight it.  When both parties are in agreement a divorce can be completed within a few weeks.  When parties are fighting, it can take years.  There is nothing stopping you from leaving the state, but if you take the child with you, the other parent may petition the court to the have the child returned to his custody.  As long as one of you still lives in Virginia, the divorce can be filed here.  If your husband is on a ship or stationed overseas, but his last station was in Virginia, then he can be considered a resident of Virginia for jurisdictional purposes. 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 More

You can divorce him by providing legal notice by publication in the newspaper.  The newspaper will run an legal notice once a week for for weeks, the clerk of the court will mail the notice to his last known address and post the notice on the courthouse door.  After this, you can proceed to finalize your divorce without him.  However, you cannot obtain any marital property or support from him through this procedure. 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 More

In Virginia all it takes to be legally separated is actually living separate and apart with the intent that the separation is permanent.  There is nothing further that has to be documented or filed.  When one party wants to finalize the divorce, they will merely need to swear under oath that they have been separated for the required time period and they will need an independent witness who can verify this.  That's all it takes. 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 More

As long as the person who wants the divorce has grounds for divorce, then they can obtain a divorce whether the other person wants one or not.  The grounds for divorce do not have to be based on fault, such as adultery, cruelty, or desertion.  The most common ground is the no-fault ground of living separate and apart for more than one year.  If the parties live apart for a year, whether by agreement or because one party simply moves out, then a divorce will be granted.  All the other party can do is dispute any terms of the divorce, such as property division and support, or if there are children involved, custody, visitation, and child 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.  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 More

Assuming the mother also wants the kids, then the thing that could stop you from having your kids is a custody battle with her.  Even if she wins, you should still be granted visitation time with the kids, unless the court determines that it is not in the children's best interest to be with you.  This is very unusual, as it is generally considered best for kids to spend as much time with both parents as possible.  Everyone will be happiest if you and the mother are able to work out an agreeable schedule for the kids between the two of you.  If you leave it up to a judge to work out a schedule for you, you are both likely to be unhappy with it. 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 More

You said she wanted the divorce and you did not, so I'm not sure what you are trying to accomplish.  Do you want advice on how to fight against the divorce?  (She will be able to divorce you eventually regardless of your wishes.)  Or do you want to know how to prove adultery against her and bring a fault-based 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.  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 More

If the court order or contract already had the termination date in it, then you just stop paying when the time comes.  If it is being paid by wage withholding, then you may need a new court order to terminate that.  That is fairly simple to do. 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 More

You may be able to avoid paying her spousal support on two basis - one as you mentioned is if you can prove adultery.  However, adultery is very difficult to prove.  Even if you collect all the evidence you mention, it is still circumstantial.  It's not enough to show that she spends a lot of time with him and spends the night at his home, you have to show that they are having sex.  How do you prove this without pictures of them in bed together?  The best evidence would be to subpoena her boyfriend for a deposition and ask him under oath whether they have had intercourse.  I hope he is not married, because if so he can refuse to answer based on his 5th Amendment protection against self-incrimination.  If he is not married and has to respond, you have to hope he tells the trust and does not commit perjury.  But if he lies, then you use all of your circumstantial evidence and it will be up to the judge to decide whether his denial is credible in the face of the evidence.  The other way you can prevent paying spousal support is to show that they are living together in a relationship analogous to marriage for more than a year.  It sounds like they have not technically moved in together yet, so this may not help, but keep it in your back pocket in case they do shack up in the future.  This will not prevent you from having to pay temporary support in the meantime, but neither will proving adultery, because you won't get to prove the adultery until you get to a final hearing in a divorce and she can ask for temporary support in the meantime and as long as you are in a position to pay it you will probably have to.  She can also overcome the adultery grounds for denying support if she can show it would constitute a "manifest injustice" to deny her support.  In any event, you would still have to pay child support, as long as the kids are living with her. About the health insurance, do NOT cut her off until the divorce is final.  As long as she is your wife you could be held liable for any out of pockets costs if anything were to happen to her.  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 More

Ordinarily you get divorced where one of the parties currently lives, NOT where you were married.  The only reason to go back to the country you were married in is if you are concerned that that country would not recognize a divorce decree from the U.S. and you need that country to recognize you as divorced.  In any divorce you have to meet residency requirements before filing.  For instance, in Virginia you must live here for six months before filing here and you must live here at the time of filing.  Assuming that Pennsylvania has similar residency requirements then you could only file if you still lived there.  So since you just moved, you are in legal limbo where you can't file anywhere until you have lived in one state for the required residency period.  This is actually very common.  So, unless you are planning to move back to PA, I would just stay put in VA for the required six months and then file here.  You could also file wherever your spouse lives based on his residency in that state, but since you don't know where he is that is not an option for you.  But the fact that you don't know where he is creates another issue of how to provide him with legal notice of the divorce.  If you have used due diligence to try to locate him and you are unable to find him, you can provide legal by publication in the newspaper.  We do this all the time, but it does add a couple of extra months to the divorce process.  But within a few months of meeting your residency requirement your divorce could be 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.  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 More

You do not need to do anything to file for separation in Virginia.  Once you live separate and apart from your spouse with the intent of remaining separated then you are legally separated.  If you intend to file a divorce based on a one year separation or on a six-month separation, if you have no minor children and a written property settlement agreement, then at the time of the divorce you merely need to swear under oath about the date you separated and you will need a witness to verify this.  The witness cannot be your spouse. You only need a separation agreement if you are basing your divorce on the six-month separation.  You can obtain the separation agreement at any time prior to filing the divorce.  There is no waiting period, but will mostly depend on when you and your spouse come to terms on everything and both are wiling to sign.  It is a contract that you hold onto, but you don't file it with the court, until you file the divorce.  It ordinarily gets filed at the end of the case, along with the final order. 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 More