1.
You have a Separation Agreement, signed by both parties, and you've
been separated for more than 6 months or 1 year.
Congratulations!
You've got an uncontested divorce. Your case should be relatively
quick and easy to do, with little in the way of stress or expense
for you.
Your case
will proceed pretty much as set forth in "C" above.
For step "4", you won't have an actual hearing. Instead,
you and a friend or family member will come to my office to give
depositions (answering my questions under oath) to establish that
what you say in the Bill of Complaint is true (i.e., that you
have lived in Virginia for more than six months, that you separated
on a certain date, that you've been living separate and apart
since that time, that you have the intent to separate permanently,
and that all your property, support, and custody controversies
have been settled by the Separation Agreement). Then, your friend
or family member will corroborate (i.e., verify or back up) what
you have just said by answering the same sort of questions.
A day or two
later a court reporter prepares a transcript of my questions and
your answers. Then I prepare a Final Decree and file the whole
package with the Clerk of Court.
A few days later the Final Decree is signed by a judge and I get
a copy to send to you and your spouse.
The entire
process can take as little as a month, if you are in a hurry and
your spouse is willing to cooperate to get the job done.
FAQs:
So,
can I set the date for my wedding to my new love for a month and
a day from when the Bill of Complaint is filed?
No! First,
there may be delays. This is litigation, after all, not carpet
installation. All kinds of unexpected things may happen, not the
least of which is that your spouse may not cooperate, in which
case I will have to spend lots of time getting your spouse served
with notices of each of the important steps along the way, which
will add at least 6 weeks. It'll be more if your spouse is out
of state, because then we have to serve your spouse through the
newspaper, a process which automatically delays things for at
least 50 days. Also, I can get busy with other cases and have
to put yours temporarily on the back burner. Even after the Final
Decree is signed, under Virginia law you cannot get remarried
for 30 days. So please, please - if you are planning to get remarried,
don't book the church until after you have a certified copy of
the Final Decree in your hands! You'll save a lot of heartburn
later on, believe me!
Do
we have to go to court for the hearing?
No. As long
as it's all uncontested, the closes you will get to the courthouse
is my conference room. We will have the hearing right there. It's
actually not a hearing at all -- it's a deposition, which is what
they call it whenever a lawyer asks questions under oath of a
witness who is sworn to tell the truth and whose testimony is
recorded. This is a relatively new system, and it's a tremendous
advance over when I first started out, because it means that we
can schedule it for a date and time that is convenient to you
and your corroborating witness, not the court. Also, it means
you don't have to fight the traffic to the courthouse, find a
place to park, get there half an hour early, and wait an hour
or so for your case to be heard (all the time paying me to sit
there beside you). By contrast the deposition in my conference
room will take 15 minutes tops, so I can pass the savings on to
you by charging you a much lower fee.
What
if I don't know where my spouse is?
No problem
at all. Simply give me your spouse's last known address and we'll
serve the papers on your spouse through publication in the newspaper.
I
just moved to Virginia last week, but I've been separated for
more than a year. Can I file for the divorce now?
No. You can't
file until after either you or your spouse has resided in Virginia
for 6 months.
I've
been in Virginia for more than six months, but I'm here on sabbatical
from my university job back in Michigan. I haven't changed any
of my IDs to Virginia, and I'm still registered to vote in Michigan.
Can I still file in Virginia?
No, unless
your spouse resides in Virginia. The reason is that you have to
not only be a resident of Virginia, you also have to be a domiciliary
of Virginia, which loosely translated means that you consider
Virginia to be your home and place of residence and you don't
have any current plans to leave.
My
wife and I separated more than 6 months ago, but during that time
we spent a weekend together at a couples retreat. Did that weekend
break our 6 month period of separation?
No, because
it was only a trial reconciliation, not a real resumption of cohabitation.
However, any trial separation that goes on for more than a week
will probably break the period of separation.
My
husband hasn't done a bunch of the things he promised to do in
our Separation Agreement. If I file for an uncontested divorce,
does that let him off the hook?
No. What I'll
probably do is to go ahead and get the divorce on an uncontested
basis. Then I'll send him a letter along with his copy of the
signed Final Decree informing that if he doesn't do what he's
supposed to do in the Separation Agreement he'll be in contempt
of court (because the Separation Agreement has been incorporated
into the terms of the Final Decree) and he could end up in jail.
If that doesn't work I'll have to follow through with the threat
and bring a contempt proceeding against him.
Can
my 15 year old daughter be my corroborating witness at the deposition?
Technically
yes, if she's old enough to know the difference between telling
the truth and telling a lie, and she knows that you've been separated
for more than a year. However, I would rather not impose on minor
children for this task. Instead, pick a friend, next-door neighbor,
or adult family member.
I've
been living in Hawaii for the past year, while my wife has stayed
in Virginia. Do I have to fly myself and my corroborating witness
all the way to Virginia just for a stupid 15 minute deposition?
Well, you
might combine the trip with some sightseeing. . . Seriously, the
answer is "No", as long as your wife will cooperate
to the extent of showing up herself for the deposition, along
with a witness who can corroborate the period of separation from
her standpoint. As long as we are going on an uncontested basis
the court doesn't care who proves the basis for the divorce.
After
you file the Bill of Complaint, how are the papers served on my
husband?
The standard
way is to have a sheriff's deputy go to his residence and knock
on the door. If he's there the sheriff hands it to him (this is
called "personal service"). If he's not there the deputy
tapes it to his front door (this is called "posted service"
and is just as good as personal service). Most people don't like
the shock of opening the door and seeing a deputy sheriff with
a big badge standing there, and nearly everyone hates the idea
of papers naming them in a divorce suit hanging on their front
door all day for any passerby to read, or for the neighborhood
vandals to rip off, etc. Besides, each time the deputy goes out
to serve him it costs you $12, and there will be three such instances
in even the least complicated case. Not to mention the fact that
each time we have to have him served it means at least a three
week delay at the outset, and two more two week delays before
I can wrap the case up. Therefore, if you think he will cooperate
at least to the extent of signing his name to a Waiver of Service
form, I will send the papers to him with a nice cover letter explaining
where I would like him to sign, and asking him to return the papers
to me. If he doesn't respond within a reasonable time we'll go
ahead and have him served the standard way.
Can
you give me a timeline so that I can keep track of the progress
my case should be making?
Sure! Here's
a timeline showing the steps along the way to a typical uncontested
divorce:
____Initial
client contact and preparation of Bill of Complaint, etc.
____Bill
of Complaint, etc. filed.
____Papers
ready for pickup (about 5 days later).
____Papers
either served on defendant by sheriff or sent to him by me with
waiver form.
____Defendant
fails to file an Answer within 21 days of being served, or sends
me back the signed waiver form.
____We
call you to arrange a good date and time to have the depositions.
____Depositions
occur in my office. Immediately thereafter you take you corroborating
witness out for a drink, which is the traditional compensation
for being a corroborating witness (Yes, I made that up).
____The
court reporter prepares a transcript of your testimony (about
three days later).
____I prepare
the Final Decree and file it with the Clerk.
____The
Final Decree is signed by a judge and I get a certified copy,
which I send to you and to the defendant.
____You
wait at least 30 days before getting remarried (but gee - you
just got divorced, so why not wait a little longer?)
2.
You don't have a signed Separation Agreement but you've been separated
for more than 1 year.
These cases
can either be very simple or very complicated, depending on the
facts of the particular case. Assuming you have no children, you
don't need spousal support, and there's no marital property to
be divided, your case is very simple and we can go pretty much
as set forth in #1 above. Issues like children, support, and marital
property will complicate things, because they will all have to
be decided by the time the Final Decree is signed by the judge,
since they haven't been settled by the signing of a Separation
Agreement. That means we will have a contested case to the extent
that any of these issues have to be determined by a judge. Let's
examine each issue in turn to see how the court system deals with
them:
a.
Child Custody and Visitation. This is the one area
that a judge's least favorite thing to get into. Most court
systems require both you and your spouse to attend custody mediation
whenever a contested custody case is filed, and you won't be
able to get a hearing date set unless and until you both certify
that the mediation has been fruitless. You can imagine the judge's
quandary - how is any judge going to get enough information
about you, your spouse, and the children to make an intelligent
decision in just a few hours of a hearing? If there are allegations
of abuse or neglect the judge may appoint a guardian ad litem
for the children, whose job is to essentially act as the attorney
for the children, and to report to the judge as to what he or
she thinks is best for the children. By the way, "ad litem"
is not a typo. It's a Latin phrase that simply means "for
the litigation". In other words, the guardian ad litem's
authority ends when the case is over.
b.
Child Support. This is an area where the judges' discretion
has been severely limited in recent years, which has made the
task of setting child support much easier for the judges. It
is usually set at a hearing shortly after the defendant files
an Answer to the Bill of Complaint. This hearing is called a
pendente lite hearing. "Pendente lite" is another
Latin phrase that simply means "pending the litigation".
Nowadays this hearing can be done fairly quickly because there
is a statutory form that has to be filled out and presented
to the judge, called a Child Support Guideline Worksheet, which
sets forth your gross income per month (that is, before taxes
and other deductions are taken out), and your spouse's gross
income. That gets us a combined gross income, and from there
we consult a statutory table that tells us how much the child
support need is for the number of children for whom support
is being sought. Then, we add in the cost of any extraordinary
medical or dental expenses that aren't covered by insurance
(such as braces), the cost of work-related day care, and the
cost of health care coverage for the children, to arrive at
a total child support need. Then we simply multiply that figure
by each party's percentage of the combined gross income to arrive
at the amount of each party's share. The non-custodial parent
pays his or her share to the custodial parent. By law this is
supposed to be done by withholding from the non-custodial parent's
wages, so an Income Deduction Order will be signed at the same
time.
c.
Spousal Support. There are no statutory guidelines
for this subject, so the judge is given wide discretion. There
has been a real change in the last 20 years about spousal support
with judges. Practically speaking, nowadays a spouse will only
get permanent spousal support if there has been a relatively
long marriage (10 years or more), during which time the spouse
has become dependent on the other by agreement of the other
spouse (such as an agreement to stay home and raise the kids),
there's some reason the dependent spouse can't get a decent
paying job (such as having to care for infant children or children
with special needs, or being too elderly to be able to get back
into the work force.
d.
Marital Property. Lots of things to consider - see
my discussion of this subject in section II(C) above.
3.
You don't have a signed Separation Agreement, you've been separated
for less than 1 year, and there is some reason to get before a
judge now to get an order entered.
There are
a bunch of reasons. For instance: what if your spouse has left
and isn't paying support for you or the children? What if your
spouse has a $400,000 401(K) plan in her name alone, and you are
worried that she may withdraw it and put it someplace where you
can't find it? What if you have an unwritten agreement that your
spouse will return the children from a visitation session at 7:00
p.m. Sunday, and it's now midnight and there's no sign of him
or the children? In other words, what if you bloody can't wait
a year to get before a judge? If so, just call me. There are a
number of ways we can get before a judge right now.
