Most of the questions that we get – at least in the early stages of a separation or divorce – is a basic one. “What should I do first?”
It’s a good question, too, because I think it’s always smart to go into something knowing what to expect and having at least the outlines of a plan in place beforehand. It prevents you from jumping in headfirst without considering the consequences; it helps ensure that, whatever you do, your choices are specifically designed to lead to the result that you want.
In a divorce, this is especially important because – all too often – it’s a deeply emotional and vulnerable time, and those feelings can lead to a woman making less-than-desirable choices about her future.
How is a divorce resolved in Virginia?
Basically, in Virginia, there are only two ways to get a divorce: either you negotiate an agreement between yourselves that divides everything or, alternatively, the judge will do it for you. For the most part, you’re going to want to try to reach an agreement yourselves because it will cost less, resolve more quickly, and give you a whole lot more control over how everything will be divided.
Why might you go to court – even if the results generally aren’t as good?
It’s not always possible, of course. It’s possible that, no matter what you say or do, he’ll refuse to sign an agreement. It’s also possible that you don’t know the extent of the assets and liabilities (and he won’t agree to share that information with you, with necessary supporting documentation). It’s possible, too, that he has cut you off from access to the marital money, and you need temporary child and/or spousal support (or maybe a restraining order, an order of exclusive possession, or child custody) determined while the litigation is still pending. Any (or all) of those things might force your hand, and you might find yourself in court anyway.
Keep in mind that, just because you go to court for pendente lite (a temporary support hearing) or because you need to conduct formal discovery, that doesn’t mean you have to go all the way through to a contested divorce trial. At any point, you can resolve your case – settle it – on an uncontested basis by negotiating a signed separation agreement.
How is property divided in Virginia divorce?
In Virginia, we use equitable distribution for property division, as opposed to community property. We label property as either separate, marital, or hybrid, and that determines how it’ll all be divided. Basically, you will receive 50% of the marital share – though you should note that this does not necessarily mean 50% overall, or 50% of each and every asset.
When we’re determining what exists to be divided, we’re looking at where it came from. Is it something that was earned during the marriage by one of the parties? If so, its generally divisible in divorce (unless there’s a prenuptial agreement). On the other hand, assets that come from a non-marital source – like trust funds, inheritances, gifts from third parties (other than your husband), personal injury settlements, etc – are generally classified as separate property.
How is custody and visitation determined?
Child custody and visitation are determined based on the best interests of the child. Child support is established by a formula. All three – child custody, visitation, and child support – are modifiable based on a material change in circumstances.
We don’t mandate 50/50 custody in Virginia; technically, the court is required to consider all forms of custody equally. It is possible to have primary physical custody, shared physical custody, or split physical custody awarded, though we do often start at shared custody, especially in a case where both parents are asking for parenting time.
What are the ‘wild card’ issues in Virginia divorce?
If anything is going to be contentious, it’s usually child custody and spousal support. Most everything else is fairly well established, though there can be the odd issue here or there that is unusually difficult.
Though we have a formula for child support, there is not a binding formula that we have to use for spousal support cases. Spousal support awards can vary dramatically so it’s important to have a conversation with an attorney sooner rather than later about what you might expect in your case.
Where should I start?
So, all of that to say that we’re back at the beginning, right? It’s important to understand your rights and entitlements. A great place to start is by requesting a copy of our divorce book for Virginia women, but you might also want to consider attending a seminar as well. They can both be a great source of information, especially before you schedule an initial consultation.
That way, you’ll know enough to make sure that your initial consultation is worth it, that you already have an idea of your goals and objectives, and you can work with the attorney to come up with a customized plan of action designed to make sure that you get the results you need in your case.
For more information, to request a copy of our divorce book, to register to attend a seminar, or to schedule an initial consultation, visit our website at hoflaw.com or give us a call at 757-425-5200.