VI. If You’re Involved in a Contested Divorce

A. Introduction.

A contested divorce can occur for any number of reasons. In fact, there are at least five different areas in which a conflict can occur – grounds of divorce, spousal support, child support, child custody and visitation, and division of property. This means if you amicably settle 80% of the issues in the divorce, you could still be headed for a long, nasty trudge through the legal system. As you might have guessed, then, divorce is one of the areas where cases are least likely to end in a complete settlement, and more likely to see some time in front of a judge. If you’re reading this section, then, your case has likely already hit that point, or is heading that way, or at the very least you fear it might.

This section seeks to give you a peak at the “worst case scenario” – what to expect if you settle nothing. Remember as you read this that a case is allowed to settle at any time. It is literally never too late to settle a case. Even after the judge has ruled! You can always decide that there is another way that would be better for both of you, and by agreement change the judge’s ruling. Finally, also remember that there is no rule against partial settlements. You can settle property without giving up any of your rights for spousal support, etc. So, this is truly a worst-case scenario – many of the most contested cases still don’t go through everything I will lay out here.

B. The Process.

While on paper the process for a contested divorce is much the same as for an uncontested divorce, the reality is very different. Here is a brief summary of each step of the process in a contested divorce.

1. The Complaint. Much like an uncontested divorce, a contested divorce starts with a Complaint for divorce. The Complaint must include a ground for divorce. If you have been separated for more than a year, you can still seek a divorce on the ground of one year separation (although this is the path for an uncontested divorce, this can be part of a contested divorce as well, it just means the ground of divorce itself won’t be contested). If you have not been separated for more than a year, or even if you have, you can also seek your divorce on one of the fault grounds mentioned in Section II. Your complaint will also lay out any important allegations you have against your spouse, and, most importantly, the matters you want the court to resolve (custody, child support, spousal support, etc.). If you believe something has been resolved, you can also say this in the complaint (if property has been resolved, for example, your Complaint can state “no property issues remain between the parties”).
2. The Pendente Lite Hearing. The unfortunate fact is, a contested divorce can take anywhere from nine months to a year or even longer. In the meantime, if you were dependent on the other spouse and need support, you simply cannot wait that long to start receiving it. If your divorce is contested, you also probably cannot get an agreement from that spouse to pay you in the meantime. As a result, almost every contested divorce case begins with a pendente lite hearing. “Pendente lite” is a Latin phrase meaning “pending the litigation.” As the phrase would indicate, a pendente lite hearing is a short (usually 30 minutes) hearing in which the judge can decide on a number of matters pending the outcome of the litigation. In other words, until the case is resolved, a pendente lite hearing sets support, and can legally determine many other short-term rights (use of the marital residence, custody, etc.). Because at 30 minutes a judge cannot hear nearly all of the evidence involved, a pendente lite ruling is usually meant as simply a stop-gap measure, and holds no precedential value over the final hearing. In fact, it is almost unheard of to have a final award that matches the pendente lite award.
3. Answer. Usually a pendente lite hearing is held less than 21 days after the Complaint is filed, meaning it often occurs before the Answer is due. In the Answer, the defendant now gets the chance to respond to the allegations made in the Complaint. The defendant can also file a Counter-Complaint, seeking a divorce for his or her own reasons and making his or her own allegations. Of course, if you file a Counter-Complaint, the other side then has 21 days to file an Answer to that Counter-Complaint. As you can imagine, sometimes you’re just at the opening filings and you already have 50 pages of paperwork!
4. Scheduling Conference or Term Day. In Fairfax County, once a Complaint and Answer has been filed, the court will set a scheduling conference. This is where the date for the final hearing will be set. If custody and visitation of children is in dispute, two trial dates will be set, with the final hearing at least 30 days after the last day of the custody/visitation hearing (that’s right, a divorce can involve two separate and distinct trials). In other counties, you petition the court for “term day,” which occurs approximately once every other month, and at which all cases set for that term day are scheduled. In either case, you can usually expect that the soonest the case will be allowed to be scheduled will be at least three months away, and sometimes as long as a year away.
5. Discovery. “Discovery” is the general term for the process by which each side has to reveal a whole heck of a lot of information to the other. In a typical contested divorce, about 80-90% of the disputes, time, and attorneys’ fees comes from discovery, be it preparing discovery, responding to discovery, preparing responses to discovery, noting deficiencies in the other side’s discovery, going to court over those deficiencies, preparing additional responses to respond to those deficiencies, going to court over the deficiencies in the responses meant to resolve deficiencies…. the list goes on. That being said, a contested divorce is also frequently won or lost in discovery, so the time is certainly well spent. In Virginia there are four basic types of discovery:
   1. Interrogatories. One side can send, either at once, or in a series of requests, what are called “Interrogatories” to the other side. These are essentially open-ended questions which the other side must answer under oath. This is a good place to find out about the other side’s employment, expectations, and positions on the issues. No more than 30 Interrogatories can be asked over the course of litigation.
   2. Requests for Production. One side can send, either at once, or in a series of requests, what are called “Requests for Production” to the other side. These requests are, in fact, not requests, they are requirements. Unless they fall into a narrow set of exceptions (such as producing the items being too burdensome, or not leading to admissible evidence), the other side is required to hand over to the requesting side copies of all documents, video tapes, pictures, or other things that are requested. If an item is too big to be sent, or cannot readily be copied, the other side is required to provide the requesting side permission to inspect the item. This is a great way to see bank statements, pay statements, and other documentation that might be used against you in a trial. There is no limit on the number of requests for production that can be made.
   3. Requests for Admission. One side can send, either at once, or in a series of requests, what are called “Requests for Admission” to the other side. As with Request for Production, these are not really “requests.” Basically, each request will make a statement that the requestor believes to be true. The person responding can then admit that the statement is true, deny its truth, or if the person cannot admit nor deny its truth, then they must explain why they cannot. Once a statement is admitted, the person admitting no longer has the right to deny the truth of that statement for the remainder of the litigation unless a new fact arises. This is a great way to get some basic facts out of the way, and avoid unnecessary time litigating issues that are not, in fact, issues. There is no limit on the number of Requests for Admission that can be made.
   4. Depositions. Either side can compel the other to come to an office (usually their own attorney’s office) and submit to a deposition where, under oath, they must answer questions asked by the deposing attorney. Additionally, other witnesses can be compelled to participate in a deposition by way of a subpoena. A deposition is a great way to find out what a person will say on the stand, and know what further information needs to be collected to prepare for their testimony.
   5. Timing. Discovery does not have to come at this stage in the litigation. In fact, discovery requests can be served on the defendant at the same time as the Complaint, or as late as 21 days before trial (with some exceptions – in Fairfax County, for example, discovery requests cannot be served less than 51 days before trial). Once discovery requests are served, the responding party has up to 21 days to respond (or 28 days if the requests were served at the same time as the Complaint). As long as you don’t miss by much, the penalty for being a little late is not too severe, with one key exception – Requests for Admission. Any Request for Admission not responded to within 21 days (or 28 days if that is the deadline that applies) is deemed “admitted”! So, if there are Requests for Admission outstanding, make sure your attorney is on that deadline! Finally, discovery need not be served all at once. You can serve requests multiple times over the course of the litigation – so long as you don’t ask more than a total of 30 Interrogatories – and the deadline for each specific request is 21 days (or 28 days) after that specific request was served.
6. Trial. After going through nine to eighteen months of Complaints, Counter-Complaints, Discovery Disputes and hearings, most people are excited when the day of trial finally rolls around. This is where everything that’s been done up to that point, especially in discovery, comes out. A trial can last anywhere from a morning to five days or longer, depending on the issues involved. The best part of all, however, is that once the trial is over, there is, finally a ruling. Now, if you are a normal person, you probably think that, great, the judge has ruled, that’s the end of the case! Well, you would also be dead wrong.
7. Entry of the Final Decree. Once the judge rules, rarely, if ever, will the judge write out an order. Instead it’s up to the two attorneys to take what the judge has said, put it down on paper, and come back to get the judge to sign it. While this is usually fairly straightforward, it is not uncommon for disputes to arise over what the judge said, what the judge meant, and/or a desire to reach a settlement that is mutually better than the ruling. While a Final Decree is normally entered within a month of the trial, it isn’t always, and I have seen it take six months or longer! Remember, the divorce isn’t actually final until the Final Decree is entered! Ok, but now that the Final Decree is entered, surely the case is over, right? Oh my, don’t you wish that was true.
8. Twenty-one Day Jurisdiction Retention. In fact, the judge continues to have jurisdiction over the case, including the ability to change rulings, for twenty-one days after the Final Decree is entered. During this time, either side (or both) can file a Motion for Reconsideration, where they ask the judge to reconsider any of his or her rulings. Usually, along with this motion will be a request for a Suspending Order, where the judge will stop the Final Decree from actually going into effect until the judge rules on the Motion for Reconsideration. This can sometimes take a month or longer. But, once the Motion for Reconsideration is denied, can’t you finally move on with your life? Somehow, I think you already know where I’m going with this.
9. Thirty Day Appeal Window. Once the Motion to Reconsider is denied, the Suspending Order is lifted, and the 21 day count starts again. However, there’s another deadline to be aware of. If either side is going to appeal the ruling of the Judge to the Court of Appeals, they have thirty days from the entry of the Final Decree to do so. But, if a Suspending Order is entered, that thirty day window actually does not start until the Suspending Order is lifted. While it is still possible to file an appeal, neither party can get re-married, and if an appeal is filed, it may be another year before the case is finally resolved. If, however, the Final Decree is entered, and the thirty day period has expired without an appeal being filed, then, finally, the case is over, and you can move on with your life. Sort of.
10. Modifications. Once a divorce is truly final, the rulings regarding the divorce itself and the division of property are pretty much set in stone. Rulings regarding spousal support, child support, and child custody and visitation, however, are subject to modification. When there is a “material change in circumstances” (something like gain or loss of job, significant change in income, the custodial parent is sent to jail, etc.), a party may seek to re-open the case. This does not undo the divorce, but it can cause the support numbers, support duration, and the child custody and visitation arrangements to be changed. In other words, the case isn’t really over until spousal support has expired and the kids are done with high school (and not disabled).

FAQs:

I didn’t want to agree to my wife’s terms for settlement, but now I’ve been served with a Complaint and with discovery requests and, frankly, I’ll spend more in attorney’s fees dealing with these than I would spend giving her what she wants. Is it too late to settle?

No. As I said above, it is never too late to settle. In fact, sometimes serving the other party with discovery requests is just what the doctor ordered to change their mind about settling. While you should always try for the best result you can, it is more than reasonable to keep the attorney’s fees of a contested divorce in mind when deciding if an offer is worth accepting or not. Nonetheless, you should still always talk to an attorney before settling, even if your discussion only leads you to conclude that yes, you should accept that offer.

I heard that settling is better than having a contested divorce because there are things a settlement can require my spouse to do that a judge in a contested hearing can’t. Is that true?

Yes, it is true that there are many things that can be done by agreement that cannot be done by a judge. This includes transferring property that is in one party’s name only to the other party, continuing child support past the age of 19 and requiring both parties to contribute to the child’s college education, leaving a retirement fund intact in exchange for more money available immediately (or vice versa), receiving spousal support in a form other than money, continuing spousal support after re-marriage of the spouse receiving it, and many other potential options. Moreover, once these are done by agreement, they can then be incorporated into a court order, and have the weight of police enforcement behind them. However, I cannot agree that settling is “always” better, because sometimes the other side just will not be reasonable, and you have to go to court to assert your rights.

The Judge at the Pendente Lite hearing gave my wife a lot more in spousal support than I think she needs. Should I give up and just agree to make that her final spousal support number?

No! I cannot say it enough times, pendente lite awards have no precedential value for determining the final award! In fact, usually a pendente lite award is based on a guideline worksheet that is not even admissible at the final hearing. Additionally, if you think your spouse is not working but should be, someone called a “vocational expert” can be used to show the judge what your spouse should be making – something that just cannot be reasonably done in the limited time for a pendente lite hearing.

I think I’m going to be a day late in getting the documents they requested to you, what’s going to happen to me?

Well, that depends. Usually it’s ok – the other side probably won’t even have time to complain. However, if you have Requests for Admission outstanding, make sure your lawyer sends those, at the very least, on time. Otherwise, if it’s less than a week, usually nothing will happen to you. If it’s more than that, a “Motion to Compel” might be filed in which a court order is sought to order you to provide the materials. Sometimes a “Motion for Sanctions” can also be filed, which can impose penalties against you, including paying some of the other party’s attorney’s fees, and even not being allowed to present some evidence at trial! Sanctions usually are not entered, however, unless a Motion to Compel has already been granted and violated. Nonetheless, if you want to be safe from all possible consequences, get your responses done on time.

My husband just made a very damaging (to him) admission in response to a Request for Admission – how do I know he won’t take it back at trial?

Because the Rules of the Supreme Court of Virginia don’t let him. Once someone has admitted a statement in a Request for Admission, that’s it, it’s admitted. If your spouse says something else on the stand, we need only show the judge the response to the Request for Admission, and the judge is required to take that admission as the final answer. This, by the way, is why responding to Requests for Admission on time is so important. If you don’t respond on time, you are considered to have admitted everything, and then you cannot later deny the truth of those statements.

I am getting re-married, and, remembering what you said about that 30 day appeal window, have booked a venue for ninety days after my trial – is that safe?

Probably, but not a guarantee. I strongly recommend, as stated previously, that you wait until the appeal window is over to even book a venue. The odds are, even in the most hotly contested case, the Final Decree will be entered within a month after the trial, and there will be no appeal (appeals are, after all, very expensive – sometimes even more expensive than the whole trial process). This means, you will probably be in the clear to re-marry within about 60 days after the trial – but again, this is not a guarantee. As I said, I have seen it take six months or more for a final decree to be entered, and even then an appeal can be filed, in which case your deposit will be long gone and your wedding illegal.

I was ordered ten years ago to pay my wife permanent spousal support, but I just found out she got re-married five years ago and never told me. What can I do?

Call us, right away! As I said, spousal support (unless there is an agreement otherwise) terminates when the party receiving support re-marries. Additionally, while normally a modification of support, either child support or spousal support, is only retroactive to the date your motion to modify was filed, there is an exception for a case of a concealed re-marriage in spousal support. In other words, not only can you terminate your current support obligation, you should be able to get the five years of payments back, plus interest!