Meditation

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 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:

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
The standard of living established during the marriage
The duration of the marriage
The age and physical and mental condition of the parties and any special circumstances of the family
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
The contributions, monetary and nonmonetary, of each party to the well-being of the family
The property interests of the parties, both real and personal, tangible and intangible
The provisions made with regard to the marital property under ï¿½ï¿½ 20-107.3
The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity
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
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
The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
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 divorce was 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 a 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