Divorce Attorneys in Charlottesville, VA
No one enters a marriage with a plan to get divorced, but after months or years of conflict or disconnect, divorce may be the best thing for both parties moving into the future. But even then, separating from your spouse can be difficult from both an emotional and a legal standpoint. At the law offices of Buck, Toscano & Tereskerz, Ltd., our experienced divorce attorneys in Virginia can guide you through the dissolution of your marriage, and fight for the best outcome of your case.
Grounds for Divorce in Virginia
In order to file for a divorce in Virginia, one must state the grounds on which the divorce is justified. While parties can seek a divorce from bed and board (which is a legal separation that does not allow for parties to remarry), those who wish to truly part ways permanently should seek a divorce from the bond of matrimony. There are only three grounds for divorce from the bond of matrimony that are recognized in the state of Virginia:
- No-fault grounds. Parties may seek a no-fault divorce–which is the most common grounds for divorce in the state–when they have lived separate and apart without cohabitation for at least one year. If the parties agree about how to settle issues in a divorce, including property division, and they do not have any children, then the time can be shortened to six months of separation rather than one year.
- Adultery, sodomy, or buggery. Divorce is rarely filed on the grounds of sodomy or buggery these days, but adultery is a reason for which a person may file a divorce. To seek a divorce based on adultery, the spouse claiming that the other party has been adulterous must present clear and convincing evidence that this is the case. A finding of adultery may affect things like a spousal support award, as well a court’s decision regarding the equitable division of property.
- Conviction of a felony. Finally, if one spouse is convicted of a felony and is sentenced to serve an incarceration period of at least one year or more, the other spouse may seek a divorce as such. The grounds will be null if the divorce-seeking spouse resumes conviction with the spouse convicted of a felony after learning of incarceration.
If you want to learn more about divorce from bed and board and the grounds that are required for this type of divorce, our attorneys can help. Please call us today with any questions that you have.
Filing for Divorce
To file for a divorce in Virginia, you need to make sure that the residency requirement is satisfied, which is that at least one spouse has lived in Virginia for a time period of six months. If you are seeking a no-fault divorce, you will also need to make sure that you and your spouse have lived apart for a year or more (or six months if you have reached an agreement about your divorce settlement and do not have children).
To file for divorce, the divorce-seeking party (called the plaintiff) will file the divorce complaint in the circuit court in the city or county where you live. Your complaint must include all specifics, including the grounds on which divorce is being sought, evidence that residency requirements are satisfied, and other details, including current living arrangements. You must pay a filing fee at the time of submitting the complaint; filing fees may vary by county, but in Albemarle Circuit Court, the filing fee is $82.00. Your complaint and summons must be served to your spouse (called the defendant). Your spouse will then have a period to respond to your complaint.
Issues to Resolve in a Divorce
If you and your spouse have children or/and have not reached an agreement about a separation agreement at the time that you are filing for divorce, you will need to work together to do so before your divorce can be finalized. Issues that must be resolved in a divorce include:
- Child custody and visitation. Those who have shared children in a divorce must reach an agreement regarding custody and visitation of the children. Parents may opt for a joint or sole custody arrangement, depending upon their preferences and the child’s needs. Parents are encouraged to work together to reach an agreement out of court; litigating a child custody case can be time consuming, and emotional for parents and children alike.
- Property division. Virginia is an equitable distribution state, which means that property must be divided equitably amongst spouses, but not necessarily a 50/50 split. Separate property–which is that property acquired prior to the marriage or through gift or inheritance–is not subject to division.
- Spousal maintenance. Another common issue that spouses must resolve before a divorce will be finalized by a court is that of spousal maintenance. Spousal maintenance may be awarded by a court when one spouse does not have the means of self-support otherwise.
- Unpleasant Factors. Everyone has done some things in their past that they are not proud of. And although these things are not pleasant to talk about, you need to reveal them with your attorney if there is a chance that they might be relevant to your divorce case. For example, you will need to tell your attorney about any criminal history you may have, because this could be brought up to argue against giving you custody or more liberal visitation rights. Or if you are dating someone new, this is another thing that is likely to be brought up if your spouse knows about it.
Your attorney needs to know about any “skeletons” you have in your closet that might be brought up. Knowing this information in advance gives your attorney the best opportunity to mitigate the possible damage it could cause to your case. Not knowing and being blindsided at the last minute is the worst possible scenario, and it decreases the chances of a positive outcome. If you are not sure if something will affect the case, tell your attorney anyway and let them decide if it is relevant or not.
While it can be difficult to do, resolving these issues with your spouse without court intervention is ideal. Mediation is one form of alternative dispute resolution that may be used to help you and your spouse reach a compromise. When you resolve issues together, you will have more control over the outcome of your case, and your divorce will be resolved faster and at a lesser cost.
Common Mistakes People Make During a Divorce
Taking an Adversarial Approach Motivated by Anger or Revenge
When it comes to divorce, choosing to take an adversarial approach motivated by anger or revenge is likely to cost you significantly more both emotionally and financially. The less you are willing to negotiate, the more likely the proceeding will end up with a costly court battle. And at that point, everybody loses. Try to set aside your anger and be as civil as possible with your spouse. Be willing to communicate with them in a rational manner, so you can hopefully work out a settlement without the process getting too expensive.
Fighting Too Much Over the Kids
Along the same lines as the first mistake, some divorcing spouses use their children as pawns to try to get back at the other spouse. For example, they might fight for sole legal custody when there is no valid reason not to allow the other parent to be part of the decision-making process. Divorce is hard enough on children, but it is far worse if you put them through a major custody battle, especially if it is unnecessary. Try your best to negotiate a peaceable and workable child custody and visitation arrangement, understanding that this may not be possible at all cases.
Not Being Honest and Transparent with Your Spouse and Attorney
The last thing you want to do is hide assets from your spouse or keep something important from your attorney. Divorce courts do not look favorably upon spouses who hide assets, and you could incur some costly consequences for doing so. Along these same lines, your attorney can best represent you if they know all of the important facts. Be open and honest with your attorney at all times.
Forgetting that Social Media Platforms are Public Forums
You may feel like venting some of your frustrations with your soon-to-be ex-spouse on Facebook or your social media platform of choice, but this is a huge mistake. Always remember that anything you say on social media is public information, and it is discoverable in a divorce proceeding. This would also pertain to things like posting pictures of you and your new significant other on vacation together with your kids. Posts like these can be interpreted negatively by your spouse. The best advice is to stay off of social media altogether until your divorce is finalized.
Not Properly Dealing with Joint Credit Accounts
Chances are you have some joint accounts with your spouse. For example, you might have some credit cards in both your names as well as a jointly financed vehicle. As soon as you know you are getting divorced, close any joint credit accounts that have no balance or a small enough balance that you can pay off right away.
Are Personal Injury Settlements Considered Marital Property in a Virginia Divorce?
This is a tricky question, and there is no simple answer that applies to all situations. If a personal injury settlement is received before the couple is married and the funds remain separate throughout the course of the marriage, then it will almost certainly be considered separate property. But if the injury happens while the couple is married, then things can start to get cloudy.
Virginia Code § 20-107.3. allows the court to classify which property is marital and which is separate based on a number of general guidelines. With regards to personal injury or workers’ compensation awards, the law states the following:
“Marital share” means that part of the total personal injury or workers’ compensation recovery attributable to lost wages or medical expenses to the extent not covered by health insurance accruing during the marriage and before the last separation of the parties…
This means that as a general rule, the only part of a personal injury settlement that should be considered marital property is the amount used to cover lost earnings and medical expenses (not paid by health insurance) while the couple was married and before the date of final separation. As such, any part of the settlement that is meant to cover certain intangible losses such as pain-and-suffering, emotional distress, disfigurement, and permanent injury should not be part of the property division.
This may seem fairly straightforward, but things can get complicated for a number of reasons. First of all, a lot of personal injury settlements are not itemized to include a breakdown of compensation for the various categories of losses. When this is the case, it may be difficult to determine which part of the settlement belongs to both spouses in which part is separate.
Why You Should Work with a Skilled Divorce Attorney – Call the Law Offices of Buck, Toscano & Tereskerz, Ltd. Today for a Consultation
Working with a skilled divorce attorney can help to secure an outcome of your divorce that is in your best interests and ensure that your future is protected. Even if you and your spouse are seeking an out-of-court resolution, an attorney can review all settlements before they are finalized and represent you during negotiations. If your case goes to court, having an attorney on your side is invaluable.
To schedule a consultation with our talented family lawyers, please call us directly at 434-977-7977.