Virginia Divorce Legal Questions

In order to file for divorce you must first have grounds for divorce.  In Virginia, there are two no-fault grounds for divorce.  One is being separated for one year.  The other is being separated for six months, IF you have no minor children together, and a written property settlement agreement (PSA).  It sounds like you have the PSA, so assuming you have no minor children together, you can file for divorce after you have been separated for another five months.  The other grounds for divorce are based on fault, such as adultery, cruelty, or desertion.  These fault-based grounds do not require a separation period before filing the divorce.   However, all by adultery require the parties to be separated for a year before the divorce can be finalized.  Typically these fault-based divorces take many months or years in court because they require contested litigation and a full trial to prove the grounds for divorce.  They are usually only worth pursuing when there is a lot at stake, such as division of significant marital property or the need for support (or to prevent the other party from obtaining 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

Annulments in Virginia are only granted in certain specific circumstances.  For instance bodily impotence is a ground for annulment, but homosexuality is not.  However, you can divorce her either by claiming desertion of the marriage or by waiting out your separation period and filing on no-fault grounds. 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

I'm not sure what your specific question is, but you should probably speak with a lawyer to determine your rights in this situation.  For instance, yes, you can request spousal support if your spouse was supporting you during the marriage and this has nothing to do with whether he is planning to get remarried or not. 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

Of course it is always better to have a lawyer draw up any agreements or at least let a lawyer review and advise you before you sign anything.  Even with seemingly simply agreements, I cannot tell you how many times I have had clients get themselves into trouble by signing agreements that waived their rights or did not protect them from liability because they did not ask me first.  Then they think a lawyer will be able to get them out of it, but that is almost impossible.  As for the statement your wife wants you to sign, it will probably not stop you from being able to divorce her after the required separation period, as long as you can prove by other means that you are in fact separated despite what the agreement says.  But you do have to show that your intent is to be separated, as well as that you are actually physically separated.  The contract might negate you saying it was your intent to be separated.  But maybe you weren't separated on the date you signed the agreement, but you were the next day, then you can go with that.   In any event, you will need a witness to corroborate your date of separation, so think about who will be your witness and how they will verify your separation date. 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 a right to ask for support if your spouse was supporting you during the marriage, however the duration of the support is going to be in relation to the length of the marriage.  So in a short-term marriage like yours, where you were together less than a year, you are likely to only get temporary support.  But this might be enough to help you get your own place and get back on your feet - what we sometimes call "rehabilitative support."  So it could still be worth asking for, even if it is very short-term. 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

Even if you don't catch him and serve him before he leaves, you can still get divorced.  If you don't know his whereabouts overseas, you can provide him legal notice by publication in the newspaper.  However, you would not be able to get support or anything else from him, if you do the divorce by publication.  So, if there is anything you want from him (support, a portion of his retirement benefits, or other investments or assets), then you will have to catch him and have him served.  But if there is nothing you want from him other than a simple divorce, then stop stressing out about it.  You can get it done.  But I do recommend you have a lawyer do it for you because we do these all the time, know exactly what paperwork you need and how to get it done quickly.  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

Generally, once a divorce is final you have lost your right to come back and ask for any division of marital property.  A couple of narrow exceptions to that rule are where you were provided legal notice only by publication in the newspaper, in which case you have two years to reopen the case and have any property or support issues addressed, or in cases where it is determined that the divorce court had no personal jurisdiction over you.  But assuming neither of these applies to you, it is probably too late to ask for a portion of his pension now. If you were still receiving spousal support, then his pension could be counted as income for purposed of calculating what he should be paying you, but it sounds like the alimony in your case was of limited duration and has already terminated.  So that is not an option for you.  All of these things had to be addressed at the time of your divorce and that was your opportunity to make these requests.   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 you supported your husband throughout the marriage then that is the precedent set for your marriage and he will be able to request spousal support.  However, the factors you bring up can be taken into account and if you can show that he is capable of earning a living and that he is voluntarily underemployed then he might have income imputed to him that could reduce or eliminate the spousal support.  It will probably require hiring a vocational expert to show how much he could be earning.  And if he has not sought the education and training that he needs to support himself, then you may have to support him while he does this.  Because you have a 16 year old child, I assume you have been married for quite awhile, so this is also going to be taken into account, probably to his benefit.  If he does ask for spousal support, you should ask for child support, so that at least it cancels out to some degree. 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

It can be done either of the ways you specify, depending on what you both agree to.  If you are unable to reach an agreement, then a judge can determine the amount and duration of spousal support.  In any support ordered by the court, it is generally modifiable upon showing a material change in circumstances, such as that the payor retires.  At that time, then he could come back to court and ask for a reduction and it would be recalculated based on the situation at that time.  So, basically, if you don't agree with your husband's plan of spelling it out all out now, the court will do it your way of leaving it open-ended to be revisited later.  This however may not be the case in shorter term marriages where the court may only order support for a limited duration.  I am assuming that in your case the court will order lifetime support that will only terminate upon the death of either party, remarriage by you, or your living in a relationship analogous to marriage for more than one year. 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 far as the sate of Virginia is concerned you are both responsible and legally liable for the property tax bill.  They can come after either one or both of you to pay it.  In a divorce the court can decide which of you will be responsible for it, as between the two of you, but as with any joint debt, that does not stop the third party from coming after either of you for it.  This means that if the court decides it should be your wife's responsibility, but you end up having to pay it or they garnish your wages, your remedy it to go after your wife to pay you back. You might think that the court would automatically assign the debt to her because it was her fault that it became delinquent, but the court can look at a lot of factors, including which of you is in a better position to be able to pay it and how any other marital assets and debts are divided.  So there is no clear answer to your question.  The court can do whatever they think is fair in your particular situation. 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

Any divorce must ordinarily be filed where one of the spouses currently resides.  It does not matter if either party is a citizen of the United States, if they do not currently live in the U.S. then they will not meet the residency requirement of any state.  (There are exceptions for military members who are stationed abroad.) 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, a person must file for divorce where either one of the spouses lives, since most jurisdictions have a residency requirement. 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 need a lawyer licensed to practice in the jurisdiction in which any lawsuit is filed to represent you.  The same goes for divorce suits.  However, if that court has no personal jurisdiction over you, such as that you have not lived there, have not been served with papers while in that country, or it is not the last place of marital residence, then the courts in the United States may refuse to recognize that divorce and you can file your own divorce here to have any issues of property and support decided by a U.S. court.  The U.S. courts may also rehear your divorce if they determine that the foreign court did not provide you with adequate due process.  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

While the answer in California may very well be different, in Virginia the separation papers do not serve any purpose, except to resolve any property that you may have together and a separation agreement is required in order to get a divorce in Virginia after only a six month separation, if you have no children.  But since you have already been separated more than a year, you do not need that.  You cannot force someone to sign separation papers, so if your spouse refuses to sign, then you really have no choice but to file for divorce, if you want to obtain a divorce.  Any property and support issues that may have been resolved by the separation agreement will have to be heard by the court and decided by the judge.  And there is still an opportunity for your spouse and you to reach an agreement, while the divorce is pending. It is up to you whether you file in California or Virginia.  You can file where either of you meets the residency requirement.  However, if she has no connections to Virginia, she may object to jurisdiction here in Virginia and demand that the divorce be transferred to California.  it's impossible to say how long the whole process will take as every case is different and it will largely depend on how much the two of you fight over things versus reaching an agreement.  In Virginia some courts will push the case through within one year, if you don't resolve it sooner.  Other courts will let the case linger for several years before finally dismissing it, if there is no action taken by the parties to finalize 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

While there is no specific law against a spouse "hiding" assets, you will have to right in the divorce to obtain all documentation of his retirement and other accounts going back for several years.  If you see large withdrawals coming out of those accounts, your lawyer should be able to trace where that money went and your spouse will have to provide that documentation, as well.  You can also seek a preliminary order from the court prohibiting any dissipation of marital assets, which would then put a stop to any future withdrawals, assuming that your spouse follows the court order.  If not, he would be in contempt of court. It can be difficult to find an attorney who can work on credit with the hope of getting paid in the future, since obviously lawyers have to make a living.  But if it is large amount of assets you are talking about, which after a 30-year marriage it may very well be, then you can often find a lawyer willing to take that on a contingency or deferred-payment basis. 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

Determining the amount and duration of spousal support is a lot like playing the tables in Vegas - it's a crapshoot.  Unlike child support, which follows strict guidelines, spousal support can be whatever the judge thinks is "fair."  In a case like yours where you spouse is underemployed, you will have to show that she is voluntarily earning less than her earning capacity.  If she quit a good-paying job, this may be fairly easy.  In some cases, you may need to hire a vocational expert to show that someone could be earning more than they are. 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 a general rule, if your email and phone messages are password protected and you did not provide the password to your spouse, then you have an expectation of privacy that your spouse has invaded.  Because of this violation of privacy, your spouse should not be able to use any of the information they have gathered in this method against you in court in a 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

In a situation like this you have to determine where your leverage is.  What does she need from you?  Does she need you to pay her child support?  Does she need her things from the house?  I am not saying you should necessarily deny her any of these things, but this is where she will have to communicate with you to get what she wants.  If the answer is there is nothing that she wants from you, then there may be nothing you can do except wait until your case is ripe to file for divorce. Since you have children together, you will have wait until you have been separated for a year before either of you can file for divorce, unless you have fault-based grounds, such as adultery, cruelty, or desertion.  On the other hand, if there is something you need from her - visitation rights, spousal support - you may be able to file in the Juvenile & Domestic Relations District Court to have these issues resolved.  However the JDR courts cannot address marital property issues.  Those will have to wait to be heard in the Circuit Court pursuant to a divorce, if the two of you are unable to work it out ahead of time.  You would join the hundreds or maybe thousands of other people who find themselves in this legal limbo waiting period where there is nothing that can 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.  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

Generally speaking, you have the same rights to the children as your (ex)spouse. UNLESS, there is a court order limiting and defining custody and visitation. That being said, is is always wise to have an attorney work out custody and visitation through the court system. The end result are orders that are clear and enforceable. Right now your agreements are only as good as your relationship with your soon to be ex.  Even if you reconcile later, you should still work out the terms of separation, custody and visitation and support.   Regards, James Fairchild NOTICE: This response is based on general legal theories and does not constitute legal advice nor does it create an attorney client relationship. It is for general information purposes only.... Read More

Assuming that the vehicle was purchased during the marriage or even if she just made ANY payments on it during the marriage, then it is at least part-marital property.  If the police contact you, just explain that you are married and it is marital property and they should understand that it is a domestic matter and not a criminal matter.  They should leave it to the divorce court to sort out. 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 tough situation. However, you both have equal rights at this point to stay in the home. It sounds like you may need separation but forcing him out may be difficult. The law does not give one person preference over another. If you are in fear of actual physical harm then you may need an protective order, but your facts do not indicate any physical danger.    On anther note, your assets and liabilities during marriage may be marital property. What you contribute to the marriage and buy during the marriage are attributed to both of you.    You both need to decide how your marriage is going to proceed and begin to work on a separation agreement. Typically an attorney will walk you through this process and help draft the document, but you can work together with your spouse and figure out those issues on which you agree.   NOTE: This response is for general information and does not constitute legal advise nor does it create a legal relationship.  ... Read More

In order to file for a divorce you must first have grounds for divorce.  Unfortunately, unhappiness or irreconcilable differences are not grounds for divorce.  Living separate and apart for a year is grounds for a no-fault divorce.  If you have no children and are able to enter into a property settlement agreement with your wife, then you can file for a no-fault divorce after only a six month separation.  Otherwise, without the requisite separation period, you would have to have fault grounds against her in order to file for a divorce. The fault grounds we see most often are adultery, cruelty, and desertion. So, in your case, since you didn't mention any actual fault, you probably need to separate from your spouse in order to seek a divorce.  Anytime you move out of the marital home, there is a risk that the other side will claim abandonment.  But in reality most divorces start with some kind of abandonment.  If you are supporting her financially, you will probably be required to continue to support her for some period of time.  But since you are living with her mother, it sounds like you are probably not financially supporting her.  So there is probably very little risk to you to move out.  And that is what you are going to have to do if you want to seek a 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

There are two requirements for a legal separation -- actually living separate and apart is the first part and the other requirement is that you must have the intent that the separation is permanent.  So, if at some point during the 2 years that you were married and living apart it became your intention that the separation was permanent, that is when your legal separation began. 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's a very good question.  The court has the power to do either.  I'm assuming that you are paying what's called pendente lite support, which is temporary support set up while the case is pending litigation.  This is usually established based on preliminary evidence, which may or may not be the complete picture.  At the final hearing, the judge could determine that you were paying too much all along and order any overpayment to be paid back to you.  This would usually be accomplished by deducting a certain amount from any future support payments.  However, I think it would be unlikely for the judge to order your spouse to actually cut you a check paying you back for the temporary support you provided.  If the support is terminated completely, it would be more likely that the judge would make that be from the date of the final hearing and not retroactive.  But it may depend on the particular facts of your case and your judge. 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

First you should know that annulments are only granted for very limited specific grounds, such as that you found out your wife was a prostitute or felon prior to the marriage and she didn't tell you.  Nothing you have stated is grounds for an annulment.  However, it sounds like you suspect adultery, which is grounds for a divorce, if you can prove it (which is virtually impossible). As for your questions about child support and BAH, you should not have to pay any child support for a child that is not yours and whom you did not adopt.  Your wife could ask for spousal support for herself, however, and that could include your BAH.  But we would have to look at a number of factors more closely to determine what, if anything, she may be entitled to. 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