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Annulments

A common question is whether it is possible to have a Virginia marriage annulled.  The concept exists in Virginia but most people do not qualify for it.  The code section is 20-89.1.

The first category of marriages that can be annulled are those where there is some defect in the marriage process itself.  If the parties do not have a license or if the person officiating was not properly authorized to perform the marriage rites or if the parties lacked the legal capacity to enter into a marriage because they were too young or were mentally handicapped, an annulment may be possible.  Bigamous and incestuous marriages can be annulled.  So, if one of the parties was not free to marry because a previous spouse is still alive and there has been no divorce, an annulment is possible.

The second category of marriages that can be annulled are those where some important fact was unknown to one of the parties.  Undisclosed impotence, a felony conviction, pregnancy by another, fathering a child by another where the child is born within 10 months of the wedding, and a prior career in prostitution can be grounds for an annulment.

The last category of marriages that can be annulled are those where there was some fraud.  The elements of fraud are:

  1. a false representation
  2. of a material fact
  3. made intentionally and knowingly
  4. with intent to mislead
  5. reliance by the party misled, and
  6. resulting damage to the party misled.

The fraud must be proved by clear and convincing evidence, which is a higher standard of proof than is required in most civil cases.  An example of this would be a marriage between an immigrant and a citizen where the immigrant sought the marriage solely for the purpose of being allowed to legally immigrate to the United States and the spouse didn’t know it.

Most couples will not have grounds for an annulment. And even when the grounds are present, there are limitations on when they can be asserted.  So cases where an annulment is possible and less expensive than a divorce are rare. A Virginia divorce attorney can advise you whether you qualify.

That said, every year we have a few cases where our client is eligible for an annulment. The most common situation is when it is discovered that the other party was not divorced from their previous spouse at the time of the marriage. It is easy to prove and readily granted in such cases.

Basic Steps in the Divorce Process

The Complaint

A divorce case begins when either the husband or the wife files a paper with the court called a “Complaint for Divorce” and has it served on the other spouse. The party who files first is called the plaintiff and the other party is called the defendant. These names depend entirely on who files their paper first.

The defendant has 21 days to file a paper called an answer. After the defendant files an answer, or the time passes without any action by the defendant, the case can proceed. In rare cases, your lawyer may advise you to file another kind of response to the complaint

Pendente Lite Orders

Either spouse can request a preliminary hearing to establish certain ground rules while the case is pending.  The question of who gets to live in the marital residence, who will have temporary custody of the children, whether the marital assets will be frozen while the case is pending, and whether support must be paid are resolved at that hearing.  The judge makes decisions about these things and their ruling is called a “pendente lite order.” It stays in effect until it is modified, the case is dismissed or there is a final divorce decree. If the case is dismissed, all temporary orders become irrelevant because they no longer have any legal effect.

Frequently, one party will be served with the complaint for divorce and a “Notice of Pendente Lite Hearing.”  It is imperative that you appear at that hearing, preferably with a lawyer.  If you cannot hire a lawyer in time, go anyway and ask the judge to give you time to hire one.   This can be dangerous, because in some instances the judge will make a temporary order even though you might have had only a few days advance warning that there would be a hearing. S o it is best to consult an attorney if you believe that your spouse may file a divorce case.

The Hearing

Virginia Code Sections 20-91 and Virginia Code Sections 20-95 require that the specific grounds for divorce be present before a divorce decree can be issued.  Therefore, before the divorce decree can be entered, the court must decide whether there is sufficient evidence that the grounds for divorce exist.

The courts in Virginia use four methods for reviewing the evidence.  They include a hearing in open court, referral to a commissioner, depositions and written affidavits. Use of the commissioner method has decreased. Depositions have long been the standard procedure in the Peninsula cities of Hampton, Newport News, and York-Poquoson.  In Virginia Beach and Norfolk the hearing in open court has been the most common in recent years. In 2012 the Virginia legislature added the fourth method of proving the case with written affidavits. Your attorney may find that the Virginia Beach Circuit Court has retained requirements that still make this method difficult to use.  But if your divorce attorney files the case in Norfolk, they will find that court to be easier to work with.  The 2012 legislation is likely to have less of an impact in Newport News and Hampton.

The final step is the issuance of a divorce decree by the court. That document sets forth all of the decisions the judge has made about property, support, and custody and says that the parties are divorced. If you and your spouse have a property settlement agreement, the final divorce decree will in most cases order you both to comply with the terms of your agreement. This is significant because it makes possible to enforce your agreement through the court’s contempt power which can include putting one party or the other in jail for violating the agreement.

Whether your case is in Hampton or Virginia Beach, York-Poquoson or Chesapeake, Norfolk or Portsmouth, Chesapeake or Newport News, Bob Jeffries is a divorce and child custody lawyer who is familiar with all of these courts and their judges and able to help you make your case.

Child Support

Everyone is legally obligated to support the children they bring into the world. If you are the father or the mother, you must contribute to the cost of supporting your child. If you are not the biological parent and have not adopted the child, or have had your parental rights terminated, you have no support obligation.

Paternity

The threshold question is whether you are the biological parent. For obvious reasons, men are the ones whose parentage can be uncertain. The term for a man who the mother alleges to be the father of a child is called the “putative father.” In earlier times the process of establishing paternity depended very heavily on the the testimony of the mother which can be unreliable in some cases.

Genetic Testing

Today genetic testing has eliminated most doubt about paternity. The Virginia Code allows a putative father the right to have paternity determined by genetic testing. Virginia Code Section 20-49.4.

We refer clients who want genetic testing to a firm called Labcorp to perform the DNA test. Labcorp has facilities throughout the country and, particularly in interstate cases, it is simply convenient to deal wtih them.

In 2001, the law in Virginia was amended to allow a man who has been determined to be the father of a child to have that determination set aside if genetic testing establishes that he is not the father. Virginia Code Section 20-49.10.

If you are a putative father you may be asked if you want to acknowledge paternity. This is not something that you should do casually.  Once you admit to being the father of a child, you have obligated yourself to support that child until he or she is eighteen years old. That can amount to a very large sum of money. And, the court can put you in jail if you don’t pay it. If you have acknowledged paternity while knowing that you are not the father of the child, you cannot have that determination of paternity set aside. You should not acknowledge paternity unless you are certain that you are the father or have made a carefully considered decision to acknowledge paternity despite having doubts.

Child Support – Calculating the Amount

Child Support is determined according to a formula that begins by adding the parents’ income together. Section 20-108.2 of the Code establishes a method for computing child support and a table of amounts to be paid depending on the parents’ income. The judge can depart from what the Code provides but has to justify it by finding one of the circumstances listed in Section 20-108.1.

The formula is different depending upon how much time the child spends with the two parents.  If the parent who doesn’t have primary physical custody has the child for less than 90 days a year you use one formula.  If that parent has the child for more than 90 days a year, that is called shared custody and the calculation takes the percentage of time each parent has the child into account.

For the simpler case where the non-custodial parent has the child for fewer than 90 days a year, you start by adding up all of the income received by the parents. A number of other items are added to the basic child support obligation. They include:

  1. Medical insurance costs paid out of pocket.
  2. Child care costs incurred for the child because the custodial parent is working.

If the parties have other minor children they support, either directly because they live in their home or by paying child support, an amount is subtracted. If there is a child support order, the amount of the order is subtracted from the party’s income. If the child is living in the home, the table amount for one child is subtracted from the party’s income.

The resulting figure is then apportioned between the parents. This is done by dividing each parent’s income by the total income of both parents. Each parent’s share is figured by multiplying the resulting fraction times the support amount.

For example, assume Dad makes $2,500 a month, Mom makes $2,000 a month, and there are 3 kids. Their combined income is $4,500 a month. According to the guidelines table, the support figure is $1,193 a month. If the kids live with Dad, Mom’s support obligation is 2000/4500 times $1,193 or $530.22.

You can use a worksheet to calculate the amount according to the sole custody formula. You will have to look up the table amount that goes on line 7(a) in Virginia Code Section 20-108.2.

Computation according to the shared custody formula is more difficult and you probably should have someone help you estimate it.

Child Support – Departure from the Guidelines

(20-108.1)

The Code allows the judge to deviate from the guidelines but requires a written explanation of the reasons for not following them. The Code lists the factors that can justify a departure. They are:

  1. Actual support for other family members.
  2. The custody arrangements, including the cost of travel for visitation.
  3. The income that a party who is voluntarily unemployed or under-employed could earn.
  4. Debts incurred during the marriage for the benefit of the child.
  5. Direct payments ordered by the court for the benefit of the child such as life insurance, or education expenses.
  6. Extraordinary capital gains such as capital gains resulting from the sale of the marital home.
  7. Any special needs of a child resulting from any physical, emotional, or medical condition.
  8. Money that the children have in their own right, such as a trust fund.
  9. The standard of living the family enjoyed during the marriage.
  10. The earning capacity, obligations and needs, and financial resources of each parent.
  11. Provisions made with regard to marital property.
  12. The tax consequences to the parties regarding claims for dependent children and child care expenses.
  13. A written agreement between the parties that includes the amount of child support.
  14. Such other factors as are necessary to consider the equities for the parents and children.

Child Support – Contempt

Child support is a serious matter. It is one of the very few debts that you can be sent to jail for not paying. You should do everything possible to avoid being ordered to pay more in child support than you can actually pay. Many people get behind in child support and never catch up. Unpaid child support accrues interest and if you are not paying enough, your debt can actually go up each month even if you are paying.

If you fail to pay child support after being ordered to do so the court can hold you in contempt. The principal penalty for contempt is being sent to jail. The order will specify a “purge amount” which is a dollar figure, usually less than the amount of the arrears that you can pay and be released.

This is because contempt is different from a sentence for a crime like arson. The purpose of the contempt penalty is to get you to comply with the court’s order and once you have complied sufficiently, that purpose has been served and there is no need to penalize you further.

If you find that you cannot pay the amount your order provides, such as because your income has been reduced through no fault of your own or your expenses for other children that you support have increased you can ask the court to reduce the amount. If, however, your income has declined because you have voluntarily begun working fewer hours or just decided to take a few years off, you are unlikely to get your support requirement reduced.

Child Support – Where to file

Because people move frequently, it is quite common for one or both of the parties to be living in different states while a support order is still in effect.  It is usually more effective to enforce a support order in the state where the paying party lives.  The primary motivator to get them to pay is the court’s contempt power.  It is easier for a court in the state where the person lives to use that power  because it is easier for law enforcement personnel to take the person into custody and hold them until they pay.

The states are required to enforce each other’s court orders. So the procedure is that you file a certified copy of the support order in the local court where the paying party lives. If they are not in compliance, you ask that court to hold them in contempt. The local jail is available to keep them uncomfortable while they find the money to pay at least some of what is owed.

You can also do the same thing if you are seeking an increase in support. The one thing you should consider before you do that, however, is how the two states compare in the way they determine the support amount. If the original order was issued in a state with a generous formula, you probably want to keep the case there and not go to the paying party’s state to ask for the increase if that state has a less generous formula.

Child Support – DCSC

Virginia has an agency with the sole mission of collecting child support.  It’s called the Division of Child Support Enforcement and is known by the acronym DCSE.   Here is the link to their site.

DCSE will go to court for the custodial parent to get an order for child support.  They will also go to court to enforce that order.  Every day, all over Virginia,  lawyers for DCSE get child support orders started and have parents who fail to pay their support put in jail.

DCSE suffers from the usual problems of a large government agency.  It can be frustrating to deal with them both for the person paying and the person receiving the child support. Parties who have to pay support complain to us that DCSE treats them rudely and is unresponsive when they call. Recipients complain to us that DCSE is slow to act.

When we are representing recipients what we often do is try to jump start the DCSE process. We will file a petition for support and ask the clerk’s office to set the hearing on a day when DCSE will have its lawyer in court. When we want to have a non-paying parent held in contempt but want to save the client money, we will file the petition and have it set on a DCSE day.

When we represent the paying parent, we try to negotiate with DCSE but often have to file a case in court to have a judge resolve the issue.

Equitable Distribution in Virginia

The question of what to do about the property acquired, and the debts accumulated, during the marriage is often settled by agreement.  If the parties are unable to agree, the court has the power to order the division of the parties’ property and debts.  The code section is 20-107.3 and the process is commonly called “equitable distribution” because the court is required to distribute the marital assets and liabilities “equitably.”

Although the statute lists many factors that the court is to consider, including whether one party was more responsible for the failure of the marriage than the other, there is a strong bias in favor of an equal distribution of the assets.  There is an equally strong bias in favor of unequally distributing the liabilities.  Frequently the husband is the one to take away the majority of the debts accumulated during the marriage if he has the higher income.

In the majority of Virginia divorces, the parties are able to agree on the division of the marital assets and liabilities and they put the terms to which they have agreed in a separation agreement. The cases where a failure to agree is most common are those in which there is a high marital net worth and uncertainty about the value of the assets.

Pension and profit sharing rights that were accumulated during the marriage are marital property and subject to being divided.  In the Hampton Roads cities of Newport News, Hampton, Virginia Beach, Norfolk, Chesapeake, Suffolk, Portsmouth and York County – Poquoson, many divorces involve a military pension.  The formula for dividing a military pension is the number of months of marriage while the spouse is in the military, divided by the total number of months of military service, times 50%, times the retired pay.  A common misconception is that the spouse only acquires an interest in the pension after ten years of marriage.  This is a myth.  No particular number of years is required for the spouse to be entitled to share in the pension. The ten-year mark is significant, but for another reason. After 10 years of marriage during the service member spouse’s military service, the Virginia divorce court can order that the spouse’s share be paid to them directly from the Defense Finance and Accounting Service (“DFAS”).

The best way to approach your negotiation over equitable distribution is to make a three-column spreadsheet.  The first column will be for the marital assets and liabilities.  The second and third will be for what each party is to receive when the assets and liabilities are divided.  Follow the accounting convention of listing all of the assets at the top and then put in a line for the totals.  List the liabilities next and put in a separate total line for them.  Lastly, put in a line labeled net worth and make it the total value of the assets less the total value for the liabilities, both for the marital partnership and for each of the spouses.

List all of the marital assets and their values in the first column.  Then for each item that appears in the list, put its value in the column for the spouse who will be getting it in the divorce.  Do the same with the debts.  In the end your spreadsheet will show one net worth for the marital partnership, one for the wife after the divorce, and one for the husband after the divorce.

Lifetime pensions are valued by estimating both the likely retired pay and the life expectancy of the spouse who has earned the pension and then determining, using a mathematical formula, what the cash value of that income is, as of the date of separation. Ordinary household furnishings can be valued at cost, but a more realistic valuation is what they would bring at an estate sale.  Especially valuable furniture may need to be appraised before you can fairly allocate it to one spouse or the other.

Cash and publicly-traded securities are easy. Businesses, particularly personal service businesses like a law or medical practice, can be difficult to value. Cash businesses present lots of room for dishonest efforts to value them too cheaply.

Regardless of whether your divorce is in Portsmouth, Suffolk, Newport News, Virginia Beach, Norfolk, Hampton, Chesapeake or York-County-Poquoson, Bob Jeffries is a Virginia divorce lawyer who can help you through through the process of ensuring that you receive your fair share of the marital assets.

Grounds for Divorce in Virginia

Virginia law allows divorce on the following grounds:

  • If the spouses have lived separate and apart without any cohabitation and without interruption for one year.
  • If the spouses have entered into a separation agreement and they have no minor children and they have lived separately and apart without cohabitation for six months without interruption.
  • For adultery; or for sodomy or buggery committed outside the marriage;
  • Where one spouse has been convicted of a felony and sentenced to serve more than a year in prison and there has been no cohabitation after the other spouse learned of the conviction.
  • Where either spouse has been guilty of cruelty, caused the other to reasonably fear bodily harm, or deserted the other, the innocent party may have a divorce after a year.

The first two grounds are the most commonly asserted. The requirement of a long period of separation is an effort to discourage hasty decisions. Resumption of sexual relations or living together will reset the clock on the separation period to zero and the time will be calculated from the last occasion where there was cohabitation.

There are other provisions that are less frequently invoked and you should have your attorney explain them to you. In some cases, they may offer some advantages over the more commonly used provisions.

Mediation

Mediation is the attempt to reach an agreement with the help of a neutral third party. The mediator has no power to make rulings about your case.  The mediator’s role is solely to try to help the parties reach a compromise.

We frequently refer clients to Jeffrey Beaton, Esq., an attorney who has made mediation a focus of his practice. He can be reached at (757) 412-4123 and his website: The Center for Law & Mediation.

In child custody cases, Virginia law now requires the judge to refer the parties to mediation. Virginia Code Section 20-124.4. The Court notice of this requirement usually includes a list of mediators. While private mediators such as Jeff Beaton charge for their services, court-ordered mediation is free.

While mediation is definitely a good idea, you should be careful what you agree to do.  It is preferable to have an attorney write the agreement.  Agreements written by mediators are often difficult to enforce because they are omit essential information or use vague wording. It is worth having a qualified Virginia divorce or child custody lawyer write the agreement because they have the seen the problems that can come up with a poorly drafted agreement and know how to avoid them.

Separation Agreements in Virginia

A common request is to get a “legal separation.”  There is no court order in Virginia that is called a “legal separation.”  Two things that do exist are an agreement between the spouses that says how things are to be handled.  These may be called a “separation agreement” or a  “property settlement agreement.”  Regardless of the name, they are the same thing.

The other thing that people may be thinking of when they say they want a “legal separation” is a temporary court order that will determine the rules they will have to follow while the case is pending.  This is the preliminary order that the court makes and is called a pendente lite order.

Separation agreements can resolve all of the issues in the divorce or they can deal with some issues and leave others for the judge to decide.  Even if you can only agree about half of the issues in the case, you are still wise to resolve those issues in an agreement and focus your energies on the areas where you really cannot agree.

Separation agreements have to be signed to be enforceable.  It is customary, but not legally required, that they be notarized.  It is also prudent to have the parties initial each page so that it is not possible to later claim that text was tampered with.   It is not a good idea to do your own agreement without legal advice.  Generic forms found in a book or on the internet may create unintended problems.   It is better to make a list of points to which you have agreed and give it to a lawyer to turn into a separation agreement.

When the divorce is finalized, the separation agreement will be made part of the court’s order.  This is an important aspect of separation agreements because the obligations undertaken in the agreement can then be enforced by the court’s contempt power and a party can be sent to jail for failing to do things the agreement requires. A second aspect of separation agreements is that some of the rights they confer cannot be changed by the court.

This combination of an obligation enforceable by jail time and no possibility of the court modifying it can be devastating to a party who has over-promised.   And a spouse who is the beneficiary of a generous provision should question the lawyer representing them very carefully if there is an attempt to persuade a judge to change something that is spelled out in the agreement.  Child support and child custody issues can always be changed by the court.  But an unqualified promise to pay spousal support may not be changeable by the judge.

Bob Jeffries is an experienced Virginia divorce lawyer who has seen many agreements that people agreed to before coming to him that, unfortunately, cannot be changed. Consult a qualified Virginia divorce attorney before signing any agreements.

Simple Uncontested Divorce in Virginia

If you and your spouse have agreed to divorce and have no children and no money you will not need to spend very much for an attorney.  You will want to do a separation agreement and prove the grounds for divorce by submitting affidavits.   You will not have to go to the courthouse or see a judge.

Once you and your spouse have been separated for the required length of time, you can file your case for divorce and then submit the proposed final decree of divorce together with your separation agreement and affidavits proving you have been separated as long as the law requires.  The judge will review the papers and sign your final decree.

Whether you live in Norfolk or Newport News, Hampton or Suffolk, Virginia Beach or Chesapeake, Portsmouth or York-Poquoson, Bob Jeffries is an experienced Virginia divorce attorney who can help you get a good separation agreement that protects your rights.

Spousal Support in Virginia

The term “alimony” is not used in Virginia. Money that must be paid to a former spouse for their support after the divorce is called “spousal support.” The authority to award spousal support is granted to the Circuit Court presiding over a divorce case by Virginia Code Section 20-107.1.

The overwhelming majority of spousal support awards require husbands to pay support to their former wives.  In most divorces, the husband has the higher income and an award of spousal support can be justified on that ground.  However, awards of spousal support in favor of a husband, even when the wife has a higher income, are rare.  Whether it is because husbands don’t request spousal support or because judges harbor a bias against the concept, anecdotal evidence suggests very few husbands obtain an award of spousal support.

Effect of Fault on Spousal Support

The code prohibits an award of spousal support to a spouse who is guilty of one of the fault grounds for divorce listed in Virginia Code Section 20-91(1). The most common of these fault grounds for divorce is adultery. If the guilty spouse has been involved with a person of the same gender, the grounds for divorce are “sodomy or buggery” outside the marriage.
There is an exception, however, for situations in which there is “clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.”  One situation where this provision can be applied is where the guilty spouse has a disability or serious medical condition.

Proof of adultery must be “clear and convincing.” If the evidence is close or merely subjective, the court cannot grant a divorce on the ground of adultery.  In one case, the wife and the man alleged to be her lover traveled together and stayed in the same motel rooms but swore they never had sexual intercourse. The Court of Appeals held that the evidence was insufficient to satisfy the clear and convincing standard and that the divorce had to be based upon a no-fault ground.

There are methods of proving the adultery by clear and convincing evidence. Usually evidence that is strong will result in an agreement by the guilty spouse to waive spousal support. Gathering evidence of adultery must be done very carefully, however, to avoid violating other laws.

In addition to the bar against an award of spousal support in favor of a spouse who has been sexually unfaithful, the court is required to consider the “circumstances and factors” that contributed to the dissolution of the marriage, including the factors mentioned in 20-91(3) (conviction of a felony) and 20-91(6) (cruelty, causing reasonable apprehension of bodily hurt, or willful desertion).  In this context, the circumstances (including infidelity) are factors to be considered but not necessarily decisive.

Form of Spousal Support

The court can order that the spousal support be paid for a limited time, for an unlimited time, or all at once in a lump sum.  If ongoing support is awarded, it is almost always a specified amount per month.  The sum can be spread over two payments within the month so as to coincide with pay dates.

One feature of  temporary spousal support that is awarded for the period while the case is pending is that the ability to invoke the adultery prohibition is limited because the question of whether there was adultery is left for determination at trial.  So, the innocent spouse may have to pay temporary spousal support for an extended period of time while the case is pending, even though adultery can be proved by incontrovertible evidence.

Contempt

Family support orders, both child support and spousal support, are among the few debts for which the debtor can be sent to jail for non-payment.  That is why it is extremely important that a party agreeing to pay spousal support be absolutely certain they can actually pay it.  If they don’t pay the amount ordered by the court, they can be held in contempt and sentenced to time in jail.

Other Factors

In addition to those factors already mentioned, the court is required to consider the following factors in determining whether to award spousal supportand, if so, how much:

  1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature
  2. The standard of living established during the marriage
  3. The duration of the marriage
  4. The age and physical and mental condition of the parties and any special circumstances of the family
  5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home
  6. The contributions, monetary and nonmonetary, of each party to the well-being of the family
  7. The property interests of the parties, both real and personal, tangible and intangible
  8. The provisions made with regard to the marital property under �� 20-107.3
  9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity
  10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability
  11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market
  12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
  13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Modification of Spousal Support Awards after Divorce

Any award of spousal support made under this section is subject to adjustment later.  A separate code section, 20-109 deals with changing the amount of support.  Settlement agreements between the divorcing spouses, however, must specifically provide that they are subject to revision by the court before this section can be invoked.  If they don’t, the constitutional prohibition against altering private contracts can prevent the court from making any change to the amount of spousal support provided in a divorce settlement agreement.  Anyone considering an agreement to pay spousal support should consult an attorney and give very careful consideration to the possibility that they may later, through no fault of their own, be unable to pay the agreed amount.

Predicting the Award of Spousal Support

Unlike child support, which is formula driven, spousal support is highly unpredictable. Apart from the list of factors mentioned in the statute, the judge (and sometimes the commissioner in chancery) has extremely wide latitude.  This unpredictability provides a strong incentive to resolve the question ofspousal support by agreement.

Jurisdiction

One further difference between spousal support and child support is that the power to modify spousal support awards generally stays with the state where the divorce is granted. The Virginia code does not authorize the court to transfer jurisdiction to another state and neither does the Uniform Interstate Family Support Act, which many states have adopted.  This can be inconvenient if everyone has moved away from the state where the divorcewas granted and one of the parties wants to have the spousal support amount modified.

Enforcement, however, is not necessarily a problem.  The order to pay spousal support can be enforced in any state. The normal procedure is to register the decree in the paying spouse’s state by filing certified copies with the local court.  That court can then take the action necessary to collect the money like having the support withheld from pay and holding the delinquent party in contempt.

Payment can also be enforced in the state that granted the divorce.  The court there can order wage-withholding and hold a delinquent party in contempt.  But often it is more cost-effective to do the enforcement in the state where the paying spouse lives.  It is easier to have a party held in contempt and sent to jail in the state where they live for the simple reason that the local sheriff can go to their house and arrest them.  The sheriff from the state where the divorce was granted, on the other hand, cannot cross a state line to arrest someone who hasn’t paid their support and extradition in these cases is rare.

Bob Jeffries is an experienced Virginia divorce attorney who has practiced in the Juvenile and Circuit Courts of Virginia Beach, Norfolk, Chesapeake, Suffolk, Portsmouth, Hampton, Newport News and York – Poquoson since 1998. He can help you to ensure that your rights are protected.

 If you need legal advice call us now at (757) 491-0240 or (757) 619-5304

Virginia Divorce When Spouse Cannot be Found

Every year we get several cases where the spouse cannot be found. This is a problem because normally notice of the case has to be served on the spouse. Usually a sheriff or a private process server either hands the court summons and the divorce complaint to the spouse or hangs it on their front door.

This is because the general rule in the United States is that a court cannot do anything affecting someone’s rights unless they have notice of the hearing and an opportunity to tell the court their side of the story. Notice and an opportunity to be heard are fundamental rights that everyone in Virginia has. The way the courts handle this situation has two parts.  First, instead of having a sheriff post the divorce summons on the spouse’s door, the Virginia Code allows you to publish a notice in the newspaper.  The law pretends that the spouse reads that newspaper every day and will see the notice.  The second part is that the court will not consider spousal support or equitable distribution of marital property.

All the court will do is decree a divorce terminating the marriage.  Everything else has to be reserved for decision at a later time.  That time probably will never come.  But theoretically the spouse could come back and ask for spousal support and division of marital assets and debts.

Whether your divorce is in Norfolk or Chesapeake, Hampton or Portsmouth, Newport News or Virginia Beach, Suffolk or York-Poquoson, Bob Jeffries is an experienced Virginia divorce attorney who knows the judges and the procedures. Let him help you make your case to the judge.

When a Virginia Divorce Lawyer is Essential

If you have children, or assets other than automobiles with a value of more than a few thousand dollars, each spouse should consult a lawyer. A lawyer is also essential if one party is to pay support.

If you and your spouse are cooperating and want to save money by having the same lawyer, you are placing that attorney in a position where he or she is representing conflicting interests. You can do it that way if the lawyer is willing and makes the required disclosure but it is better for each spouse to have their own attorney.

You can still save money by having the first attorney do the work and simply use the second attorney for an independent, second opinion. Try to get the first lawyer to agree to a fixed fee and hire the second attorney on an hourly basis. Have the first lawyer do all the work and limit the second lawyer to reviewing it and providing independent advice to the other spouse. Even if the second lawyer only devotes an hour or two to providing independent advice it is worth it to have a second opinion as to the fairness of any agreements reached and any documents that have been drafted.

Irreconcilable Disagreements

If you and your spouse cannot resolve your differences, even with the help of a mediator, you should each have your own lawyer. The party without a lawyer is at a very great disadvantage. If you have a reasonably competent attorney, the money you pay in legal fees is likely to save you even more money in the long run.

The cost will largely be determined by the number of differences between you and your spouse. The more things you fight about, the more you will pay your attorneys. So it makes sense to again analyze the issues like a business problem and decide what your priorities are. It is better to invest your money in the few issues that are most important to you and give up the rest than to try to win on everything. It’s important to understand the facts of life about litigation before you decide to go to court.

Bob Jeffries has over 25 years of litigation experience and has appeared regularly as a divorce and custody attorney in the Juvenile and Circuit courts of the Virginia cities of Hampton, Newport News, Virginia Beach, Norfolk, Suffolk, Portsmouth, Chesapeake and York-Poquoson. He has the knowledge and experience to help you protect your rights.

If you need legal advice call us now at (757) 491-0240 or (757) 619