Virginia Divorce Legal Questions

In theory, filing on grounds of adultery could speed up the process because you do not have to wait for a separation period before filing or finalizing the divorce.  You could file right away, but you or your lawyer would have to be very proactive in pushing it through the court and getting it set for a final hearing.  Unlike a no-fault divorce, the court is not going to put you on an expedited docket or allow you to submit written depositions in place of a final hearing.  You are going to have to go to court, even if everything is agreed to, in order to prove your ground for divorce.  And you have to have more than your spouse's admission to the adultery.  Every divorce must be corroborated by independent or third-party evidence.   Some examples of corroborating evidence that might be sufficient would be the testimony of the man she had the affair with or pictures of them in bed together - those would be best.  but short of that, you may want to try hotel, phone, and restaurant receipts, testimony of others who have seen them together and that sort of thing.  It would be up to the judge to determine whether any of this circumstantial evidence is enough to prove your case.  But with your wife's admission on top of it, it shouldn't take much.  However, back to your question about the time frame, it can take time to work your way through this litigation process and if your wife hires a lawyer to protect her interests, it is almost certainly going to be dragged 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

If the agreement does not state that you waive any fault grounds for divorce, then presumably you could still file for divorce on any grounds that you have, which could include the no-fault grounds of separation for the required time period or fault-based grounds like adultery.  If the agreement says you waive any fault against each other, then that will probably be upheld, unless she deliberately defrauded you to prevent you from finding out about it.  But even if you can bring fault grounds against her, it will probably have no effect on the division of property.  The primary purpose of proving adultery against her would be to prevent her from getting spousal support, but you state that she is not getting that anyway.  As for any marital property, the agreement would most likely be upheld, since you already contracted as to how to divide your property.  Had you known previously about the adultery and taken these issues to court, the adultery would generally only affect the property division to the extent that her other relationship had a detrimental effect on the marital assets.  That is, did she spend a lot of money on her boyfriend?  Did she spend marital funds on hotel rooms, wining and dining him, buying him gifts?  That sort of thing.  If not, then it's unlikely it would have made much difference anyway. 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 interesting question.  I had a similar case many years ago where the spouse went on permanent disability instead of taking his pension and he argued that his ex-wife was only entitled to a portion of his pension pay and not his disability pay.  I took that one to the Virginia Court of Appeals, which agreed with me that it was the same pot of money and that the term "pension" encompassed disability pay, as well.  It might be possible to make a similar argument in your case. 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

Subpoenas can only be issued in pending litigation, even by lawyers, so a lawsuit has to be filed first.  In this case, you may need to gather some other form of proof or file the divorce on other grounds and then subpoena this evidence. 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 bank accounts had his name on them, then he is within his rights to withdraw money from him.  Marriage is built on trust and he has betrayed your trust, but you presumably allowed him to have full access to these accounts.  However, if that money was earned during the marriage, then it is still a marital asset that can be divided in a divorce.  However, if that money was from his worker's compensation settlement, that may be his separate property, to the extent that it was to compensate him for pain and suffering or future wages.  Any portion that was to compensate him for past wages, during the marriage, should be marital property, which you may still be able to make a claim on. 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 had a clear termination date, then yes, he could come back to claim any overpayments be returned to him.  You should keep the money in a separate account so that you don't spend it by accident or simply return the check to him. 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

Since you knew of his criminal history at the time you married him, that is not grounds for an annulment.  Had he concealed a felony conviction from you at the time of marriage, that would be grounds for an annulment, if filed within two years of the date of marriage.  Failure to consummate the marriage is also not grounds for an annulment. However, there is nothing stopping you from getting a simple divorce.  Since he is incarcerated, he is considered an incapacitated person under the law and therefore a Guardian ad Litem (GAL) would have to be appointed for him.  Since he is not in a position to pay for it, you would be responsible for the guardian's fees.  Depending on how much your husband fights the divorce, the attorney and GAL fees could be minimal or they could be extensive.  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 there is a court order in place for spousal support pursuant to Virginia Code § 20-107.1, that does not change unless you go to court and have it modified.  So if you reconcile with your ex-spouse, then you should move the court to modify the order.  Assuming she is in agreement, that shouldn't be hard to do.  If the support is pursuant to a property settlement agreement, then you may be locked into paying it pursuant to the contract, unless the contract has an escape clause or allows for modifiability.  There is nothing about cohabitation alone that automatically terminates the support obligation.  You may be getting it confused with her cohabitating with ANOTHER man for more than one year.  That is grounds for you to terminate spousal support under Virginia Code § 20-109.  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 think that the topic area that you choose answers your question:  Divorce.  You have no control over who your husband speaks with or associates with.  He is the one who must put an end to it, if he wants her to leave him alone.  The fact that he has not done so seemingly indicates to her that he welcomes her advances.  You need to talk to your husband, not a lawyer.  Unless you want 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

Virginia uses "equitable distribution" when dividing assets and debts in a divorce, pursuant to Virginia Code § 20-107.3.  This basically means that the court can do whatever the judge thinks is fair.  Just because the credit cards are in your name does not mean the court cannot assign some of this debt to your husband if it is determined to be the fair thing to do.  That may be the case because it sounds like the debt was incurred for the benefit of the family.  However, the court may also decide that it is fair for you to assume the entire debt because you have a greater ability to pay it.  There is no hard and fast rule.  This debt is just one thing the court will be considering and the court will look at the big picture of what other assets you and your husband are receiving in the divorce and how this debt fits into that big picture.  However, no matter who the court assigns the debt to or how you and your spouse decide to divide it, if you are able to reach an agreement, YOU are still the one on the hook to the credit card companies.  There is nothing the court can do about that.  If your husband is assigned part of the debt, but fails to pay it, then he would be liable to you for that money, but the banks would still come after you for it, not him. 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 provision under Virginia Code §20-111.1 is a fairly new statute requiring that this notice be contained in every divorce order in Virginia.  It is basically saying that you need to change your beneficiaries under any retirement plans or insurance policies.  If your spouse is named as your beneficiary, this will not be changed automatically by a divorce.  If you do not want your ex-spouse to be paid out any benefits, you need to change it directly with the company. As for custody and child support, these issues can be handled by the Circuit Court as part of the divorce or they can be done separately in the Juvenile & Domestic Relations District Court.  The two courts have concurrent jurisdiction of these issues.  However, if the issues are being addressed before a divorce or by unmarried parents, then they must be brought in the JDR Court.  Once decided by the Circuit Court, they can be remanded to the JDR Court or they can remain in the Circuit Court, if no one asks that they be remanded.  Spousal support claims can always be brought in either court prior to the divorce being finalized. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. 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 agreement needs to stipulate that he will refinance the loan into his sole name.  Otherwise, you are right to be nervous because your credit is completely dependent on him paying the mortgage on time.  If he is even late with a payment, that is going to show up on YOUR credit report, not just his.  You are still ultimately liable to the bank if he falls behind, if the house falls into foreclosure, or if he sells it at a loss.  If he is unable to refinance by himself, then he probably cannot afford the house on his own and it should be sold.  In any event, there need to be clear consequences spelled out in the agreement of what happens if he gets behind on payments or is unable to refinance within a certain period of time.  Ultimately, the house should either come back to you or be sold. 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

Once your lease has expired your landlord is free to rent to whomever he wants.  He is no longer contractually obligated to you.  He can rent to either of you or neither 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.  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 house was purchased or even partly paid for during the marriage, it is almost certainly at least partially marital property, regardless of whose name is on the title.  This means that you should be entitled to a share of any equity that is in the property.  If your husband won't agree to divide the proceeds with you, it can be awarded to you by the 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

If the court order does not state that the parents are prohibited from moving out of the area, then there is nothing legally preventing that.  However, it will almost certainly interfere with the other parent's custody or visitation schedule.  If there is a set schedule, then as soon as the children are unable to have that time with the other parent, then the parent who moved is going to be in contempt of court for violating the court ordered custody time or visitation.  This would also constitute a material change in circumstances that would give the other parent grounds to move for a change of custody. 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 theory, if you can prove that you have fault-grounds against your spouse that caused the breakdown of the marriage, that can prevent her from getting spousal support.  However, proving adultery is so difficult, as to be nearly impossible, unless you have pictures of them in bed together or the man she slept with will admit it under oath, or if she is pregnant by him.  But assuming you can prove it, she could still get spousal support under Virginia Code § 20-107.1 if she can show that it would be a "manifest injustice" to deny her the 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

This is a tough one.  Generally, he will probably be entitled to keep all the winnings, since he obtained them during the separation period.  However, if there is no prenuptial agreement, property settlement agreement or divorce order, then he has not done any of the standard things that would protect him from a claim by you.  So, there may be some way you could still make a claim, perhaps as a request for spousal support.  Since it sounds like a divorce needs to be filed anyway, it would certainly be worth exploring all the options to see if you have a claim on any of this money.  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 police are right.  It is very difficult to force someone out of their home and is usually only done is cases of domestic violence.  In this situation, where you don't otherwise have grounds of divorce to file, you must take the necessary steps to leave the marital home yourself and wait out your one-year separation.  Then you can file for divorce and the court can ultimately decide who will get to live in the home or it will be sold.  Many people get stuck in this situation because they cannot afford to move 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 sounds like a very sad and urgent situation.  I'm not sure what the question is, but this person needs to find a qualified divorce attorney in the area in which he lives.  There is also the question of who is going to look out for his interests once the divorce is final.  There may need to be a long-term guardian appointed to take care of his affairs. 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 are concerned about getting everything you are entitled to in a divorce, it is really important that you hire a lawyer.  It will be difficult to protect yourself without skilled legal counsel.  Your question is so broad, I cannot possibly begin to tell you what you should 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

In order to file for divorce you have to have grounds for divorce.  These can be fault grounds, such as adultery, cruelty, or desertion.  The most common grounds are no-fault, which is ordinarily a one-year separation.  A divorce can be granted in Virginia after a six-month separation, but only if you have no minor children together AND you both sign a written property settlement agreement.  In your case, it sounds unlikely that she would be willing to sign an agreement and you did not mention anything that would indicate you have fault grounds against her.  That means you would have to separate from her and live separate and apart for a year before you can file for divorce.  The hard part is that it does not sound like she  will willingly leave the marital home and it is extremely difficult to force someone out of the marital home.  This can usually only be done in cases of domestic violence.  Exclusive use and possession of the marital home can also be granted in a divorce, but you have to have grounds to file the divorce first.  In your case, you may have to move out of the house yourself for one year in order to create grounds for 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 is no definite answer to your question, although you seem to have a decent argument for opposing spousal support due to the short duration of your marriage and voluntary unemployment of your spouse. When presented with the question of spousal support in your divorce, the Court will weigh a list of factors in determining the amount and duration of spousal support, if any. A list of these factors can be found in Virginia Code Section 20-107.1.      ... Read More

It doesn't matter where you were married.  If you live in the U.S. now, then this is the proper place to obtain your divorce.  In fact, every state has a residency requirement that you actually live here for a certain period of time before filing for divorce.  If your wife has issues with the divorce, she can raise those with the court, but she cannot prevent you for divorcing her.  If she has no connection with the U.S. and refuses to submit to personal jurisdiction here, it is possible that a foreign court would hear any issues she has with property or support.  But you could still obtain a simple divorce here, so that you could remarry.  It would probably be easiest for you to retain a lawyer to assist you in order to ensure that have proper service on your 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

I am not sure from your question whether you mean that the child was born prior to the marriage or that the child was born during the marriage, but is not your husband's child.  If the child is not your husband's child, does he know this?  If there is any dispute as to the parentage of the child, a paternity test may need to be done.  If the child was born during the marriage, there is a presumption that it is your husband's child, so without a stipulation from him that it is not his child, there could still be issues.  If the child IS your husband's child, then it doesn't matter if the child was born before the marriage, it would still be a child of the marriage.  If you both know and agree that it is not your husband's child, then you should be able to accomplish a divorce as if you had no children of the marriage.  This would allow you to obtain a no-fault divorce after only a six-month separation, if you have a written property settlement agreement, as opposed to waiting a full year, as you would if you have children together.   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 should consider filing a Motion to Terminate Spousal Support based on her cohabitation.  Be aware, however, that cohabitation is difficult to prove, because it requires "cohabitation in a relationship analogous to marriage for a continuous period of one year."  Thus, you'd want more than them simply living together.  I hope this helps.  Good luck.... Read More