You’d think that what constitutes “do it yourself”, especially when it comes to a divorce or custody case, would be pretty clear. A do it yourself resource is one that allows you to do it yourself (duh). The best types of do it yourself resources would take you through from start to finish and explain the entirety of the process to you. Right?
But, still, there are more and more “do it yourself” resources popping up all over the place, or, at least, it seems that way to me. Recently, the Virginia Supreme Court launched a “self help” website, designed to help aid people who can’t afford an attorney as they pursue either divorce or custody cases.
Though even this site is an improvement (since nothing of its kind was offered by the court before, and, really, the more information that’s out there for the public’s use, the better), it really leaves a lot to be desired. I’ve talked about do it yourself options before for both custody and divorce cases, including several long and detailed discussions about whether you can really reasonably expect to represent yourself.
Though there’s no question it’s scary to undertake your own case yourself, more and more people have to do it all the time, mostly because they really can’t afford to pay what it costs to hire an attorney to represent them. Of course, you’ve got to be careful when it comes to where you get your do it yourself guidance.
You want to be sure that anything you’re using is up to date, Virginia specific, and created by Virginia attorneys. You also want to be sure that you understand what it’s telling you (meaning that it should be written in plain English that is easy to understand) so you don’t go down the wrong road without realizing it.
The biggest problem that I see with people who draft their own agreements is that they take no time to educate themselves on the law first. They draft a separation agreement according to what they think is fair, but without figuring out what the law allows them to receive. There are certain things (like retirement, for example!) that you’re automatically entitled to receive a portion of in divorce.
When women treat the retirement like a bargaining chip, they’re losing right out of the gate. I was excited to see that the Supreme Court is now offering a resource that will help do it yourselfers get the information they need to represent themselves but when I saw the site, I realized that it wouldn’t really be enough. Today, we’re going to take a look at the “self help” site. It has both divorce and custody pages, and provides a little bit of extra background information that can be helpful, especially if you’re coming into this without being sure of which way is up. (Don’t worry, you’re not alone.) Today, we’ll discuss the “divorce” page. On Monday next week, we’ll discuss custody, so stay tuned.
Divorce
The divorce page answers a couple of key questions: what happens in a divorce, which court handles divorce, what are the different types of divorce, and what resources can help me understand the divorce process. Though it’s good that this information is there, it’s still inadequate. Let’s discuss.
What happens in a divorce?
The court answers this question spot-on when it says that a divorce can end the marriage, reinstate a former name, divide property and debt, establish child and spousal support, determine custody and visitation and, if necessary, determine parentage.
What court handles divorce?
The self help website says, “[d]ivorces are heard in the Circuit Court, although custody, visitation, child support, parentage and spousal support may be resolved in the Juvenile and Domestic Relations District Court. Post-Divorce modifications of support, custody and visitation generally go to the Juvenile and Domestic Relations District Court.”
While that’s true, I don’t find any of that particularly helpful.
Here’s what you need to know. You can file for child support, custody, visitation, and spousal support in the Juvenile and Domestic Relations District Court. You can do that without filing for divorce. In fact, many people file for these things first, without bringing the divorce into the picture—yet. If you’re moving forward with a fault based or other contested divorce (more on this in a minute), you’ll file for divorce in the circuit court.
There’s no need to also file in the juvenile court, because the divorce will handle all of the issues related to child custody, visitation, support, and spousal support. If you’ve already filed for custody, visitation, child support, or spousal support in the juvenile court and then you or the other party files for divorce in the circuit court, the juvenile court will be divested of jurisdiction and determination of your issues will be made in circuit court alongside the divorce.
After divorce, you’ll go back to the Juvenile and Domestic Relations District Court for any modifications of support, custody, or visitation.
What are the different kinds of divorce?
The court identifies three types of divorce: uncontested, no fault, and contested. It doesn’t, however, give any descriptions or go into any detail. To my mind, there are a couple different types of divorce:
Uncontested No Fault Divorce, Contested Fault Divorce, and Contested No Fault Divorce
An uncontested no fault divorce is one where no fault based grounds are pursued and the couple are ultimately able to divide the assets and liabilities of the marriage between them. They do this in a document called a separation agreement, which is a legal contract (signed by both parties) in which they reach an agreement about how everything will be divided. A separation agreement can be reached in a couple of different ways: you can negotiate through attorneys (one or both of you can hire attorneys to represent you), you can use a mediator, you can work through the collaborative divorce process (using collaboratively trained attorneys), or you can do it yourself — but of course that’s risky!
Most of the time, when people ask me about the different ways to get a divorce, this is what they’re getting at—negotiation, collaboration, mediation, etc. I wouldn’t technically call these different “types” of divorce; the way I see it, they are different means to the same end. The goal here, no matter the method, is to get a separation agreement in place.
Contested Fault Based Divorce and Contested No Fault Divorce
A divorce is contested when you and your husband can’t reach an agreement about how things will be divided. Contested divorces are always litigated. Litigation, as opposed to negotiating a separation agreement, is another way to get divorced. To put it simply, in a litigated divorce model, you put everything in front of the judge and ultimately let him decide. In a contested fault based divorce, you’re using fault based grounds as your “reason” for divorce; in a no fault contested divorce, on the other hand, you’re using the no fault grounds based on a period of separation (in Virginia, six months if you have a signed separation agreement and no minor children, and otherwise a full year of separation).
The only difference here is what grounds you chose to use: fault, or no fault. So, as far as types of divorce go, you either get divorced in court (using fault or no fault grounds), or by an agreement (which is always going to be no fault). As far as the method is concerned, that’s up to you.
What resources can help me understand the divorce process?
Again, here the court is right: there AREN’T official forms available online, but, at the same time, there isn’t hardly anything that is “officially” available. There isn’t much information on the Virginia State Bar website or through Legal Aid.
There is, however, a great deal of information available on our site. We write articles and blogs (like this one) all the time, answering the types of questions we often get. If you go to our website, click on resources, and then blog, you’ll see a search bar. Just type in your question (or a couple of keywords) and you’ll likely find lots of answers to all the questions you have. That being said, though, there’s still not a ton out there for people who want to represent themselves from start to finish in their divorce cases. It’s just not all that easy. You have to be careful what you use, because there’s so much at stake in a divorce case.
Doing it yourself is hard, and, these days, I’m not really sure that there’s a good resource out there to help you do it, without compromising results. If you do try to DIY your divorce, I definitely recommend that you at least have an attorney review what you’ve prepared before you and your husband sit down to sign it. Whether you use the self help site or some other internet resource, it can never hurt to at least have a pro read over it and let you know what might be missing or not quite perfect. After all, there’s a lot at stake here, and you’ll want to be sure that you get it as close to perfect as it is possible to be.
For more information, or to set up an appointment to have our attorneys help point you in the right direction or help review a document you’ve prepared without an attorney, give our office a call at (757)425-5200.