When your divorce isn’t running smoothly

If things aren’t going to go smoothly in your Virginia divorce, we usually figure it out pretty early on in your divorce.  Most of the time, if a husband proves to be difficult from the beginning and we have fault based grounds that we can use, we’ll just go ahead and file a complaint.  In Virginia, the complaint is the document that formally initiates the divorce process with the court.  Until you’ve filed a complaint, the court has no idea that the two of you are anything other than a perfectly happy married couple.

Complaints are filed at different points in the process, depending on the type of divorce you’re pursuing.  In a contested, fault-based divorce (meaning, a divorce where (1) you have fault based grounds, and (2) the two of you can’t reach an agreement about how you would like to have your assets and liabilities divided), you file your complaint at the beginning of the process.  In a contested or uncontested no fault divorce, you’ll file your complaint at the end—after you’ve already been separated for the statutory period (one year, or six months if you (1) don’t have minor children, AND (2) already have a signed agreement).

    What’s the difference between a fault based divorce and a no fault divorce?

If you have a fault based divorce, you can get into court early.  If you’re filing for divorce using no fault grounds (which doesn’t necessarily mean that you don’t have fault based grounds, it just means you have chosen to move forward without citing those grounds as your reason), you can’t get into court until you’ve been separated long enough to ask the court to grant your divorce.  That’s just the way it is.  So, whether you’re fighting over how things are going to be divided or not (basically, whether it’s contested or uncontested) doesn’t matter; what matters is whether you have alleged fault based grounds.

    What are fault based grounds?

Laws are different in every state, but in Virginia we recognize a couple different fault based grounds for divorce: (1) adultery, (2) sodomy, (3) buggery, (4) cruelty, (5) apprehension of bodily hurt, (6), desertion, (7) abandonment, and (8) felony conviction.

Fault based grounds in Virginia are pretty specific.  As you’ve probably noticed, “domestic violence” generally, is not a grounds for divorce.  You’ll have to use the words provided by the statute—cruelty, apprehension of bodily hurt, or something else, if applicable, to argue that domestic violence is the real reason for your split.

    So, a fault based divorce is harder to get than a no fault divorce.

Usually, yes.  A fault based divorce is normally much harder to get for a couple of reasons. For one thing, you’ll have to litigate, meaning that your attorney will have to present your case in court in front of the judge.  That takes time and costs money.  For another thing, in your complaint you’re going to have to specifically provide what your fault based grounds are, and the reasons why you believe you qualify for divorce using these grounds.  (That will probably make your husband mad.  No one likes to read those things about themselves.)  Third, you’ll have to actually prove that you have fault based grounds.  Fourth, your soon to be ex husband will probably allege things against you in a document called an answer (which is his opportunity to tell the court his side of the story), which will probably make you fairly upset, too.

Once either one of you (or both of you) are upset, it’s much harder to come together and negotiate an agreement.  Anger, resentment, and hurt feelings tend to take over, and that makes compromise less likely.

    If it’s so hard, why would anyone ever file for a fault based divorce?

In a couple of situations, it can be necessary to file for a fault based divorce, even if you don’t want to.  Obviously, you’d like the divorce to be over as quickly, efficiently, and inexpensively as possible, but that’s just not always possible.  Here are a list of the two biggest reasons why it may be critically necessary to file for a fault based divorce (assuming, of course, that you do have legitimate fault based grounds), even if you would really rather not.

1.    He won’t provide any kind of support, or he cut you off from access to the marital money.

It’s normal that, during divorce, your finances will be stretched pretty thin.  If your financial situation is more dire, you may have to take immediate action.

We see things like this all the time.  As soon as you and your soon to be ex husband make the decision to separate, he starts living his own life.  He empties the joint back account, has his paychecks deposited elsewhere, and stops contributing to the day to day functioning of the family.  Where he used to go pick up the take out for dinner on soccer night, he’ll now only pick up food for himself.  There’s no give and take anymore; at least, there’s no give and take as far as you’re concerned.

If you’re a stay at home mom, or if you’ve just cut back on your work in order to be more physically present for your family, his removal of support can be a major financial blow.  If he moves out and stops paying the mortgage and the bills, you may not be able to make it through the next year until you’ve been separated long enough that the judge can finally hear your divorce.  The sudden removal of his financial support sometimes makes day to day management of the family all but impossible, especially if the money you earn is substantially less than what he takes home.

If you just can’t make ends meet, you may have to file for divorce on fault based grounds.  One of the main advantages of using fault based grounds is that then you can schedule a pendente lite hearing.  Pendente lite is a Latin phrase that means “while the litigation is pending.”  At your pendente lite (or PL) hearing, the judge will award temporary child and spousal support.  You probably won’t feel rich, but it will at least force your husband to pay something so that you can get the bills paid and keep the wolves from the door while the litigation is going on.

Why can’t you do this if you have a no fault divorce?  Well, the main reason is that you can’t file until your one year (or six months, if you don’t have minor children and you already have a signed agreement) is up.  So, even if your divorce is still contested one year (or six months) later, there’s really no point in having a pendente lite hearing to establish temporary support.  Why do that, when you could just move forward with finalizing your divorce?  If there’s nothing left to be “pending” before the court, you’d just get your final divorce decree entered, and then child and spousal support would be paid to you based on the terms set forth in your agreement.

2.    He refuses to work with you to reach any kind of agreement.

It’s always a good idea to start your divorce with negotiating in mind.  Generally speaking, the people who negotiate their divorces between themselves indicate the most happiness with their outcomes.  Of course, as you may already be well aware, your good intentions may be wasted on your husband.  Some husbands, no matter how hard you try to negotiate, will never, ever agree to something you suggested.  They think they can do better, or they’re just stubborn and refuse to accept an offer from their wife.

If you find yourself in this situation and it becomes clear that your husband absolutely will not work with you to reach a resolution, you may be forced to file for divorce.

Why?  Well, there are only two ways you can get a divorce in Virginia.  Either you negotiate a separation agreement and have an uncontested divorce entered, or you litigate in front of a judge.  If you can’t negotiate a separation agreement, your divorce can’t move forward.  Without his signature on that agreement, you have nothing.

To move your divorce forward, with or without his approval or involvement, you’ll have to file a complaint with the court.  Until you do that, you’ll be unable to move your divorce forward at all.  He doesn’t have to participate in the process, but you can’t get a separation agreement in place without his cooperation.  If he doesn’t want the divorce or just doesn’t want to work with you at all, you’ll find yourself in court.

Even though I say that you may be “forced” to file for divorce using your fault based grounds, I say that assuming that you do have legitimate fault based grounds.  Of course, to merely file on fault doesn’t mean that you have to be able to prove it, but you will eventually have to put forth evidence and call witnesses in order to prove to a judge that you qualify to have your divorce entered on these grounds.  To file for divorce using fault based grounds, you have to at least have a reasonable belief that your fault based grounds exist; you can’t just make something up.

So what do I do if I don’t have fault based grounds, but he’s not providing support (or he cut me off from the marital money), or he refuses to work with me?  Am I just stuck?

If you don’t have fault based grounds but he’s doing some of the same things that we’ve already talked about (like restricting your access to the marital money, refusing to pay spousal or child support, or stubbornly refusing to negotiate or try to come to any agreement with you whatsoever), you’re definitely in a sticky spot.  You can’t file for divorce early if you don’t have fault based grounds, so your complaint will have to wait until you’ve been separated for the statutory period.

If he refuses to negotiate with you, you can still file for divorce—you’ll just have to wait until the statutory period is up.  There’s nothing you can do to move your divorce forward without his consent except file for divorce and, without fault based grounds, you can’t do that until your one year is already up.  It’s kind of a drag, but it won’t hurt your case, even if it is incredibly frustrating.

If you’re not getting support and you’ll have trouble making ends meet for the next year, you may have to file support petitions in the juvenile court.  It can take awhile to get in to juvenile court, but the good news is that whatever support is awarded to you (whether you’re asking for child or spousal support or both) would be awarded retroactively back to the date that you actually filed your petition.  So, even though it can take several months to get in to court (depending on how backed up your local juvenile court is), it’s at least helpful to know that you’ll receive the amount of support you’re awarded in the future, but also every month since the time that you filed.

It’s not a pendente lite hearing, but it is a way to get into court before your one year of separation is up.  If you’re having trouble making ends meet, it may be critically necessary.  Since you can receive support retroactively back to the date that you filed your petition, you’ll want to file early if you don’t have fault based grounds and are afraid that you’ll fine yourself in this position.

In Virginia divorce, much like anything else, sometimes you have to come up with a creative solution to accomplish your goals.  Having a dedicated divorce and custody attorney on your side can be an incredible help in making sure that you get the results that you need.  As you can imagine, finding out that your husband refuses to provide you and your children with necessary support while the divorce is pending, or won’t cooperate towards reaching any kind of agreement at all makes your divorce much more stressful than necessary.  Collaborating with a licensed, experienced divorce attorney can help make the process easier, saving you money in the long run.  For advice tailored to your unique circumstances, give our office a call at (757) 785-9761.

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