At Williams Stone Carpenter Buczek, PC, our divorce attorneys work with clients throughout Northern Virginia. We handle every facet that often occurs as a result of divorce, including spousal support, equitable distribution, child custody, child support, protective orders, adoption, premarital agreements, and name changes.
Grounds for Divorce
In Virginia, it is required that “grounds for divorce” exist and is proven to the court. This holds true even if you and your spouse both agree to the divorce. Each type of divorce has particular merits which are best discussed with a qualified attorney. Our law firm can meet with you and review options of either a fault or a no-fault divorce.
If you and your spouse have lived apart for more than one year, a no-fault divorce may possibly be granted. This usually means separate homes and not simply moving to another bedroom. That said, Virginia law realizes that it may not be possible for a spouse to leave the home for economic or other reasons. In limited situations, a divorce may be granted where a couple lives entirely separate lives in addition to living in separate bedrooms. If a property settlement or separation agreement has been filed and you have no minor children, the time period may be reduced from one year to six months. It is required that one party intended for the separation to be permanent.
Virginia recognizes adultery, cruelty, willful desertion or abandonment, and incarceration for a felony of one year or longer as fault-based grounds for divorce. Depending on your situation, it may be advantageous for you to seek a fault-based divorce in Virginia. At Williams Stone Carpenter Buczek, PC, we highly recommend you consult with an attorney if pursuing a fault-based divorce.
With an uncontested divorce, the spouse who decides to file for divorce should be a person who has been a resident of the state of Virginia for no less than six months. This may require a witness such as a friend, family member, or co-worker who can verify and is familiar with your living situation.
An uncontested divorce basically means you both agree to go your separate ways. As mentioned above, you are required to have a written separation agreement. The written agreement should have provision for support and custody of the children who are still under the care of the parents. It should also make a fair distribution of property between you and the other party in the divorce. If you do not have any children, you are allowed to file for divorce after six months of separation. If you have children or you and your spouse cannot reach an agreement, you should stay apart for at least one year before filing for divorce. There are other technical requirements our family law attorneys can discuss with you. The separation agreement is the essence of an uncontested divorce. When assessing fault, you may say that there are differences that have developed that prevent the two of you from continuing to stay together as a couple and that there is no hope of reconciling.
A contested divorce develops when you and your spouse simply cannot agree on one or more issues. You may be disagreeing with property division, custody, child support, or alimony. If you have lived in separate households for more than six months, but you still can’t agree on how your property will be divided, how much child support should be agreed upon, or the ideal custody or visitation schedule of your children, you’ll likely be working toward a contested divorce.
Contested divorces can be costly. An alternative and less costly alternative to a fully contested divorce is mediation. Mediation is the process that takes place out of court where your attorney works with a mediator, typically a retired circuit court judge, to work through the difficult issues facing you. Our attorneys are very experienced in mediation. We listen to you carefully and then fight for what you want.
Filing For Divorce
Actually filing divorce starts with the filing of a “complaint” in the applicable Virginia Circuit Court and paying the required fees. The complaint must include information about the date and place of the marriage; each spouse’s current living arrangements; each spouse’s military status; satisfaction of the residency requirements; the grounds for divorce; satisfaction of the separation period, if applicable; and the ages and living arrangements of any children of the marriage. The plaintiff then has to make sure the complaint and a “summons” (legal notice of the action) are “served” (delivered) on the other spouse (the “defendant”); this is usually handled by a sheriff or a private process server.
Courts in several states grant legal separations. Virginia does not. Each spouse must enter into a separation agreement. At Williams Stone Carpenter Buczek, PC, our lawyers have are experienced in drafting and negotiating separation agreements. A common separation agreement in Virginia might include the following:
- Who will pay attorney fees and court cost?
- How will the property be divided? Who will get the house? How will the proceeds be divided if the property is sold?
- What happens to personal property? Who gets the car? Who takes a given appliance?
- What happens to the retirements benefits that have accrued?
- Who pays off the debts?
- How much alimony? For how long?
- Who gets custody of each child? Will shared custody work?
- How much child support or spousal support will be paid? How long will it be paid?
- What will be the visitation schedule? Do you want a visitation schedule?
- Who took life insurance? Who is going to be the beneficiary? What is the value of the insurance?
- Who is covered by the health insurance?
The Waiting Period
Uncontested divorces take about 2 to 3 months after filing. Contested divorces take up to 18 months. If your divorce is contested and your spouse has not filed an appeal, the divorce will be finalized 30 days after the preceding judge has signed the final decree. There are, of course, other factors that may delay this. Be sure to consult with our attorneys to learn more.
The following criterion is used in the state of Virginia for the division of property;
- Find the value of all your property
- Determine which pieces of property are separate. Such properties remain with the person who owns them.
- Separate property that was acquired before marriage or outside marriage e.g. inheritance and gifts.
- Determine who gets what from the property that was acquired in the course of the marriage. The court will consider several factors including length of the marriage, health, age and skills, financial abilities etc.
Alimony (Spousal Support)
These are periodic payments made to a former spouse for a specified period of time or indefinitely. A lump sum alimony is allowed by the law. However, indefinite alimony is rarely awarded these days. If you do not get alimony, or spousal support, at the time of the divorce, you most likely will not get it later on. If you decide to live with someone after your divorce, your current alimony order may be stopped or revised.
If your insurance covers your spouse or your children, you should not drop them until the divorce is complete. Most employees are allowed by federal law to cover their spouses for up to 36 months by paying a small additional premium. However, the employer should be notified just before the final decree.
Child Custody, Support & Visitation
There are certain presumptions and doctrines which are used by the court when deciding the best interest of the children. They include;
- Children can only be given to other people, such as grandparents when it is proven the parents are unfit.
- Continuity of placement: There is no need to move children if they are doing well where they are.
- A child’s preference: The judge will also consider what the children want. Who do they want to live with? The judge may talk to the children in private. However, the judge will not be bound by what a child wants.
To arrive at a fair settlement to be paid as child support, the court will consider the financial assets, the earnings, and the needs of the children. There are child support and alimony guidelines in Virginia.
The court will approve any visitation plan that the father and the mother agree on. If you are planning on moving out of state or even living in a different city within Virginia, it’s best you consult with our attorneys as there may be additional requirements or information you need to be aware of as it relates to your custody or visitation rights.
You should create a new will after going through a divorce. If you die without creating a new will, your spouse will still inherit everything. If your spouse has the power of attorney, you should cancel it as soon as possible.
A woman is allowed to start using her maiden name anytime she wants, however it is advised to take proper steps in fulfilling name change requirements in the state of Virginia, including proper notification of the SSA & other organizations. Our attorneys can work with you to assure your name is changed legally and quickly.
Contact WSCB Attorneys Today
Divorce can be one of the most difficult times of your life. It often touches every aspect, including personal and business. Things often change quickly and you’re usually forced to make decisions even quicker. Where you will live, what assets you’ll keep, how the children will be affected and money are usually topics you’ll need to address. During these unpredictable times, you need to have the best possible divorce attorney on your side. At Williams Stone Carpenter Buczek, PC, we work with clients throughout Northern Virginia. Contact us today.