THE DIVORCE EXPERIENCE

The Divorce Experience 2

Divorce is a:

Legal

Mental

Physical

Financial

Emotional

EXPERIENCE!

When the stressful life events are rated, studies find that the following provide the greatest negative personal impact:

  1. Death of a spouse or child.
  2. Divorce (a close second).
  3. Marital separation.
  4. Detention in jail or prison.
  5. Death of a close family member.
  6. A major injury or illness.
  7. Marriage.

Divorce and separation create immense psychological trauma. Some who experience this trauma become angry and vindictive. Their goal is to punish the one who “caused” the breakup and to ignore any part that they might have played in the breakdown of the marriage. There can be a strong sense of personal betrayal, accompanied by a feeling of helplessness and difficulty functioning within the legal process, in particular.

It is important to acknowledge your trauma and to seek the help that you need to survive it. This often includes the assistance of a mental health professional, as well as experienced legal counsel. Trauma can lead you to make poor decisions and to act in uncharacteristic ways. You need guidance, but you may not be ready to accept it. Surviving the trauma is a process and may take a great deal of time. You need to give yourself that time.

Trauma and its effects can hinder your ability to trust. This includes trust of the professionals who are trying to help you. On many occasions, you may be your own worst enemy in this respect. You need to recognize this and work to overcome it.

To overcome this traumatic experience, it is important to:

  1. Take care of yourself. If you have children, their needs come first.
  2. Obtain and follow proper professional advice.
  3. Stay organized.
  4. Do not become overwhelmed by the situation or its demands.
  5. Develop a support system.
  6. Keep a journal.
  7. Stay focused and set deadlines.
  8. Protect yourself emotionally and maintain a healthy distance.
  9. Take a break from social media. Be kind to yourself.
  10. Go dancing! Or anything you used to enjoy doing and don’t do enough.

Google It

30th-anniversary-of-the-world-wide-web-google-1552390014

In the Age of the Internet, the first thing to do when you have a question usually is to “Google it.” Google will provide you with pages of information. Some of it may be true. Some of it may be false. Some of it may be true in California, but is not true in Virginia. This is especially the case in divorce matters.

 

Divorce law is created by the specific laws of each individual state. This causes procedures and outcomes to vary from state to state. For example, while some states are “community property” states, Virginia is an “equitable distribution” state. Some states have income percentages to calculate child support. Virginia has child support guidelines.

 

Case law, which interprets the statutes, also forms a legal basis for future court decisions. Cases from other states usually are of very little influence with Virginia judges.

 

Even if what you find is 100% absolutely true and complies with Virginia law, you still must know how to apply this information to your case. More importantly, even if you have the ability to do something, that does not mean that it is in your best interests to actually do it. These reasons are why you need a lawyer to help you make the correct decision.

 

Also, remember the old rule that we were taught in law school. “There is the majority rule. There is the minority rule. And there is the Virginia rule.” Virginia is just different and proud of it!

The Family Courts of Virginia

Family Court

Virginia has a unique court system. There are Juvenile and Domestic Relations District Courts and Circuit Courts in each jurisdiction. Both courts have the authority to make orders relating to child custody, child visitation, child support, and spousal support (alimony). The Circuit Court has the additional power to award divorces and in conjunction with that, to divide property and debt. Appeals from the Juvenile and Domestic Relations District Court also are heard in the Circuit Court. These appeals are trials de novo, meaning that there is a completely new trial.

The Juvenile and Domestic Relations District Court also has the power to enter Protective Orders, again with an appeal to the Circuit Court. Criminal charges between spouses and those involving children also will begin in the Juvenile and Domestic Relations District Court.

What this means is that any case has the potential to have two full trials in two different courts.

Virginia does not have a separate Family Court system, as many states do.

In addition to the above, Virginia also has the General District Court which does not handle Family Law cases.

Benefits of Using an Attorney Mediator

Mediate

While a mediator does not have to be a lawyer, there are benefits to using one who is.

Attorney/mediators do not represent either party. They cannot provide legal advice. It is entirely appropriate, however, for them to provide legal information. Legal information could include how child support is calculated using the Virginia Guidelines or what custody factors the judge must consider per statute or an explanation of the legal terms routinely used in courts. The goal is to be certain that the parties understand what they are discussing and what they may be agreeing to.

Attorney/mediators who practice law actively will be aware of any recent changes in the law. This is important because such changes could have significant financial impacts.

In the Family Law realm, a properly drafted mediated Agreement can be used in your divorce case. For this reason, you want to have it prepared by a lawyer who practices in the local courts. This will avoid the need to have the document redrafted or corrected prior to presenting it to the court.

Lawyers also communicate daily with a varied group of people. They, in fact, are trained in communication. They specifically are trained to bring out the important facts in a case. For this reason, lawyers are great facilitators in mediation. Lawyers who are mediators encourage mediation. In order to make mediation available to more people, most lawyers charge a lower rate than their usual hourly fee. It may cost you no more to have a practicing lawyer conduct your mediation.

If you are considering mediation, consider using a lawyer.

 

 

Who, What, When, Where & How of Uncontested Divorces

Uncontested divorces are those cases in which no issues are in dispute. Usually, the couple will have signed a Property Settlement Agreement (which will be discussed in another post).

The parties must have lived “separate and apart, without interruption and without cohabitation” for at least twelve months if there is no written Property Settlement Agreement or if they have children under the age of eighteen. If there are no children under the age of eighteen, and there is a written Agreement, the separation period is six months.

An uncontested divorce can be filed in any Circuit Court in Virginia.

The divorce process is begun by one party (Plaintiff) filing a Complaint in the Circuit Court. After filing, the Clerk’s Office issues a Summons. The other party (Defendant) can sign a waiver form in which they agree that they do not need any further notice about the finalization of the divorce.

Following receipt of the waiver, Plaintiff and a corroborating witness sign notarized affidavits in a format acceptable to the Court. These affidavits are sent to the Court with a proposed Final Decree of Divorce and the other required documents. The Court reviews what is submitted, and the judge signs the Final Decree. The date that it is signed by the judge is the date that you are divorced. The Clerk will send a certified copy of the Final Decree by mail.

The certified copy should be retained with your important papers.

Since divorces have consequences, it is recommended that you employ an attorney to handle the process.

Request for Production of Documents

Requests for Production of Documents are a type of Discovery Request that is typically sent together with Interrogatories. The request is for the other party to provide documents related to the case to the requesting party. In a divorce or support case, documents that are commonly requested include those showing proof of income, such as paystubs, tax returns, W-2s, and bank statements. In cases involving child custody or visitation, the documents relate to what type of parent the opposing party is. These can include criminal and arrest records, and medical records.

This is a very useful portion of discovery because it does not require having to take the word of the opposing party. There is no limit to how many documents can be requested by either party.

Not every single Request for Production of Documents is appropriate and requires the party to fork over the document. Just as an attorney can object to questions asked in court, an attorney can note their objections to particular document requests as well. For example, if the document is equally available to both parties, then there is no reason why one party should have to do the work to provide it to the other party.

 

Interrogatories

virginia interrogatories

Interrogatories are one of the tools available in Discovery. Interrogatories are written questions that require written responses. The answers provided are treated as though the answering party was testifying under oath inside the courtroom. This means that responses are able to be used as evidence by the other party at trial.

Most attorneys have standard interrogatories for particular types of cases, but the questions can be anything as long as they are relevant and designed to lead to the discovery of admissible evidence. In a divorce case for example, the interrogatories can cover many topics. It’s common to ask about financial matters such as bank accounts, assets and debts. If there are children, then there likely will be interrogatories about child custody matters such as specific incidents, the party’s involvement with the child and the party’s mental and physical health. In any type of case, interrogatories can also ask about witnesses that know information relevant to the case.

Not every single interrogatory question is appropriate and requires an answer. Just as an attorney can object to questions asked in court, an attorney can note their objections to particular interrogatory questions.

Each side can only ask 30 interrogatories. If there is more information that either side would like to ask about, they must obtain permission to do so from the court and explain why additional interrogatories are necessary.

The Discovery Process

discovery 1Discovery is a process by which the parties seek information from each other that is relevant to the case. This is a very broad standard, which means that a lot of personal information can be requested in the process, including bank statements, tax returns, and details related to someone’s affair. The point is for each side to have an idea of what the other side may present in a trial in order for each side to best prepare their case. Discovery helps to prevent one side from blindsiding the other during a trial with evidence or a witness that they have not had time to prepare an answer to.

Types of Discovery

There are various types of Discovery, some of which include interrogatories, request for production of documents, admissions, depositions, and subpoenas. We will explore each one in future blog posts.

How long does Discovery take?

Different discovery tools have set timeframes. For example, per Virginia Statute, a party has 21 days to respond to Interrogatories and Requests for Production of Documents beginning on the date they receive them from the opposing side. If the party does not respond within 21 days, then the requesting party must make one more effort to resolve the issue, which usually means sending a letter saying the responses are overdue and providing one last deadline. If the interrogatories are still ignored, then there are steps that the requesting party can take through the court to get the responses. Eventually, if someone does not cooperate, they can suffer various consequences such as having to pay sanctions, attorney’s fees, and even being barred by the court from presenting any evidence that the discovery asked about!

The process of Discovery can be very lengthy, which means it can significantly add to the cost of a case. However, often the process increases the chances that the case will settle outside of court. It provides each side a glimpse into the other’s case and essentially forces each party to “show their hand.” It’s an extremely important part of the case, even though it certainly isn’t much fun for either side. It is rarely advised to go forward with a trial without first going through discovery.

Guardian Ad Litem

babygrass

In child custody and visitation cases, the court often appoints a Guardian ad Litem. The Guardian ad Litem is an attorney whose role is to represent to the court what they believe is in the best interest of the child.

The Best Interest of the Child

In Virginia, the court always makes decisions about children by using the “best interest” standard. This standard includes several factors which must be considered. For example, when a GAL makes a recommendation about where a child should live, they must consider the child’s age and mental condition. An infant is going to have different needs than a teenager. Other factors include the physical and mental condition of each parent, the relationship between the child and each parent, each parent’s ability to work with the other parent, and any history of abuse. The full list of the factors considered can be found in the Code of Virginia.

How Does the GAL Determine What the Best Interest Is?

In order to determine what the best interest of the child is, the Guardian ad Litem must conduct an independent investigation into the case. This means that the GAL will usually schedule a home-visit with each party to see where the child would be spending their time while in that parent’s care. The main goals are to figure out what the child’s wishes are (if the child is an appropriate age), whether the current arrangement is working and is safe, and how the child is doing in general.

GALs typically will obtain medical records and report cards, and will often speak with teachers, counselors or daycare providers. This allows the GAL the opportunity to gather information about the child’s personality as well as their physical and mental state. Your child will probably be asked to meet with the GAL without the parents as well. This can take place in the GAL’s office or in the child’s home.

The GAL’s Role in Court

The GAL is an attorney in court, and can ask questions of either side. The GAL cannot be questioned by either side, and does not testify. Instead, the GAL provides a report that includes what their recommendation is, and what they discovered through their investigation. This report is sometimes written in advance and provided to the parties.

It is very often the case that the judge’s decision will align with the GAL’s recommendation. The attorneys at Commander Law know how to work side by side with the GALs to ensure that they fully understand the ins and outs of the case. We work tirelessly to make sure all of your concerns are heard so that the GAL’s recommendation takes into consideration all of the factors that are important to our clients.

 

What is a Nesting Agreement?

In a separation or divorce, maintaining as much stability and normalcy for children should be a priority. A great way to do that for parents who have the means is by reaching a nesting agreement. Nesting or bird nesting is when the children remain in the marital house, and the parents take turns living in the home with them. The visitation schedule will vary depending on the particular circumstances of the parties, with parents alternating every two weeks, weekly or with one coming for a weekend.

What are the benefits of a nesting agreement?

There are clear advantages to nesting. Divorce can be extremely devastating to children and being shuffled back and forth between one parent’s new apartment and their former home can add to the stress. In a nesting agreement, the children get to stay put and maintain their usual routine, familiar and comfortable surroundings and the stability of living in just one place. This often helps children to deal with the major changes going on around them. Nesting also allows the parents to secure a smaller second home or apartment since they don’t have to worry about having separate bedrooms for the children. Sometimes selling the marital home immediately would result in a financial loss to the parties, and being able to keep the home and continue to grow the equity can be beneficial to them later on.

What are the drawbacks of a nesting agreement?

Nesting isn’t for everyone, of course. Sometimes it is not financially feasible for both parents to get separate homes on top of maintaining the marital home. If the parents have issues with communication, then nesting can create even more issues because they need to work together to determine how the home must be maintained, which parent will pay the bills, which parent will be responsible for repairs and groceries, etc. A nesting agreement forces parents to interact more than they would if they both remained in their own home. Keeping the home can also cause the children to believe that the door is still open for the parents to reconcile.

Each family is different and the best way to determine what custody and visitation arrangement works best for your family is to discuss the pros and cons with an attorney at Commander Law. Together we can figure out what is best for your children and for you.