In the election last month, one of my best friends was elected as prosecutor in her county. (She’s actually the first woman to have been elected in her county, ever – but, for my purposes today, a little beside the point.) It got me doing a little research into the local government and court structure there, and I found out that it’s different than it is here.
That can be a challenge in divorce, especially a military divorce. For people who’ve had little to no experience with the court system, or for people who are unused to the system here in Virginia, it can be difficult to acclimate yourself.
Divorce isn’t federal, so there’s no real legislation on how divorces should be handled in the state courts that applies across state lines. Some things – like taxes or social security – have common threads, but there’s a lot in a divorce case that varies dramatically from state to state.
To know what might happen in your divorce, or to ensure that you make the best decisions possible for yourself in your unique circumstances in your particular state (in this case, Virginia), you’ll need to take some time both to educate yourself with the laws and familiarize yourself with the structure of the court system.
Though there are certainly some similarities, you’d do well not to assume that Virginia will operate the way another state does. And, even if you’ve been a Virginia resident your entire life, you’ll want to be sure that you know and understand things well enough to have an idea of what to expect. It’s normal that you wouldn’t have much experience with the court system. But it’s also normal that you’d spend some time doing some research before you get in over your head!
The Virginia Court System
What do all the different courts do? Juvenile and Domestic Relations District Court? General District Court? Circuit Court? Appeals? What do the courts do, where do you file, and what does it all mean?
Juvenile court – or J&DR or JDR – is our lowest court. LOTS of cases are decided here, but especially custody and visitation (where they are NOT part of a larger divorce action, or where divorce action has not yet been filed), child support, spousal support, protective orders, etc.
When custody and visitation is determined without a larger divorce action, or when custody and visitation are modified, juvenile court is where the case will be filed. It is also where modifications of earlier orders will be heard.
Advantages and disadvantages to filing in the JDR Court
Because juvenile court is a lower court, though, if you don’t like the result (or if your child’s father doesn’t like the result), you can automatically appeal to circuit court. You get an appeal de novo, which means that you get a brand new trial, and nothing from the lower court comes up with it. It’s a brand new do over.
If you’ve filed in juvenile court and then a divorce action is filed, the juvenile court can no longer hear the case – it is ‘divested’ of jurisdiction, and the court automatically gets bumped up to circuit court. This can be a procedurally tricky thing to do, since the opposing party can wait until the day of the juvenile court hearing and then file in circuit court — and there’s nothing the juvenile court can do but let the case go. It’s not really a “good” or a “bad” point, it’s just something you should be aware of because it can be used either to your advantage or disadvantage, depending on the circumstances.
General District Court
As far as divorce and custody are concerned, the General District Court is irrelevant. That’s where things, like minor criminal and civil offenses, are heard.
Your divorce or custody case won’t be in general district court. Any offenses related to domestic violence, too, will either be in juvenile or circuit court.
Though you may be interested in the general district court if you’re facing a different type of case, our firm doesn’t handle them — so you’re in the wrong place!
Divorce actions are filed in the circuit court.
Custody and visitation happens there, too, when it’s part of a divorce action, or when it has been appealed. More major criminal actions are prosecuted in circuit court, too – which can include domestic violence cases as well.
Circuit court handles the appeals from juvenile court, which are heard de novo – but appeals from circuit court are more challenging.
There’s not really a debate related to advantages and disadvantages in circuit court; you file there because you have to file there. A divorce is filed in circuit court; there are no options.
As far as an appeal, though, it’s more challenging than in juvenile court. You have to have a mistake of law – not of fact, meaning that the law has to be incorrectly applied, not that the judge just didn’t understand the evidence – in order to appeal to the Virginia Court of Appeals.
Virginia Court of Appeals/Virginia Supreme Court
It’s hard to get a case to the Virginia Court of Appeals – again, you have to have a mistake of law.
Similarly, you can appeal from the Court of Appeals to the Virginia Supreme Court, but those cases are taken, like at the US Supreme Court level, when the court chooses to take them.
Appeals are pretty expensive, and it’s important to talk to an attorney about the merits or demerits of your particular case, and any options that might be available to you.
Other than juvenile court to circuit court, no other cases are taken de novo – and, even in the case of a juvenile court case, the record may be important to preserve. If the opposing party lies, or testimony is different from one case to another, you may be able to use the record to impeach that party, witness, or attorney.
You’ll want to have a court reporter at each hearing, too.
It’s important to understand the court system and where you might have to file for your upcoming case. It’s also a good idea to talk to an attorney about your case, your likelihood of success, and any options available to you.
For more information, or to schedule a consultation, give our office a call at 757-425-5200.