Divorce is never pleasant.  Avoid it if possible. Some divorces are more unpleasant than others. Some are downright cordial, and the parties part as friends, a laudable accomplishment. Some are less civil than just described, but the parties negotiate in good faith and somehow resolve their differences.  This can be a wrenching process but in the end the parties are well served.  Some divorces are sought just to send a message to the other spouse, then dropped.  Others are pursued to the bitter end, with never ending sniping and mudslinging, sending the message "I hate your guts, and I hope you burn in hell.."  The attorneys get rich on this latter one, the assets are gone (spent on attorneys' fees), the children require long term counseling, but little else is really accomplished.  We recommend against this approach.

    This booklet intends to summarize the most important aspects of the law of divorce in Virginia.  It (boldly) attempts to cover general, specific, practical, philosophical and social aspects of the process of divorce.  This booklet is reasonably accurate as to the law it presents as of the date it was last edited (July 2006).  The law, however,  is always subject to amendment by the legislature, to reinterpretation by the courts, and to different application by different judges.  Additionally, factual variations from case to case make application of certain legal principles sometimes very challenging.  Before acting on what you have read in this pamphlet, talk to an attorney first.  See Warning.

    This "computer booklet" is broad ranged.  It covers many topic and describes many things.  Some will apply in your case and some will not.  Some of you are reading this booklet for educational purposes only, and some for the entertainment value.  However, for those actively in the process of divorce, knowing something about the general issues in a divorce will help you to avoid some problems and to deal better with others.  However, this booklet does not and cannot cover all of the issues, laws, or rules involved.  It is a guide, nothing more.

    Beware, the style of this booklet is conversational and anecdotal.  It contains many "real life" examples that may perfectly (even if unflatteringly) describe your situation.  At some places it may be offensive to you (or your spouse).  Remember, this piece was written before we knew you, and was written to keep and hold your attention. So please don't take anything herein personally (unless the shoe fits. . . .).

    This booklet is best read "cover to cover."   However, knowing how 'net users like to jump around, I provide the following table/outline of topics covered in this portion of our site.  You can read a topic that interests you, then jump back to this table and read another topic.  This e-stuff makes the process much easier.

     Virginia divorces can be categorized into two types: "Fault" and "No-Fault."  In a few more paragraphs down, I will fully discuss what these terms mean.

    Another set of  terms describes other basic types of divorces, but in a totally different context: "Contested" and "Uncontested."   To some extent, the two sets of terms (contested vs. uncontested and fault vs. no-fault) are used interchangeably, although imprecisely so. Generally, a "no-fault" divorce is uncontested, while a  contested divorce usually contains elements of fault.  But no-fault divorces can easily have many contested aspects and fault-based divorces may have no disputed issues in them at all.  Hopefully by the end of your readings here you will see more clearly the distinction between these two sets of terms.

     The legal ground for a "no-fault" divorce is simply the passage of time.  The time begins to run from the date of the parties' separation, so long as, on that date. at least one of the parties separated (or remained separated) with an intent to divorce the other. In Virginia, the time that must pass is a minimum of one year.   If the parties have no children and have entered into a written Separation Agreement, the period of separation may be cut to 6 months.   If you wish to read only the information dealing with how a no-fault and uncontested divorce is processed in the courts, click here.

     Fault grounds require a violation of the marital vows of fidelity, support or appropriate conduct. The most common grounds for a "fault-based" divorces are: adultery, desertion, cruelty, and conviction of a felony (and actual sentencing to the penitentiary).  When the act of desertion or abandonment or cruelty have occurred less than 1 year from the filing of the divorce petition, only a divorce "from bed and board" can be granted by a court.  When the act occurred more than one year from the filing date a "final" divorce can be sought.  "Bed and board" and "final" divorce types will be more fully discussed below.  The actual grounds for divorce are listed in Virginia Code Section 20-91.  (Click on the blue lettering if you wish to see this statute.)

Common legal misconceptions, miscellaneous thoughts, things to ponder about fault  vs. no fault divorces. (This link will open a new window.  Closing that window will return you to this spot.)
 

      If you are filing for divorce, the "grounds" must exist before you file. If you cannot prove your grounds for divorce, wrongfully accusing your spouse of these grounds may be grounds for divorce by your spouse.  Pending the final divorce, you should not do anything to give your spouse any grounds for divorce because it can, and probably will be, used against you.

     An "uncontested" divorce requires that the parties agree to be divorced (or at least not to interfere with the other's request for the divorce). Further (and this is a biggie), all marital property and support issues must have been resolved (or at least both parties must agree not to litigate them in the divorce court). You may demonstrate that you have resolved those issues in a written Property Settlement Agreement (a/k/a Separation Agreement). There are additional t echnical requirements that must be followed before the divorce can be made final, but the Property Settlement Agreement is the essence of an uncontested divorce (see Property Settlement Agreement section below).  If you wish to read only the information dealing with how an uncontested divorce is processed in the courts, click here.

    A traditional "contested" divorce occurs when the parties cannot agree on some point (property division, alimony, custody, child support, division of debts or attorney's fees), and ask the attorney to intervene.

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    Yet another set of descriptive terms for divorce exists, and these describe the precise legal consequence of your divorce.  The terms are in Latin "divorce a vinculo matrimonii" (in English: "from the bonds of matrimony," and more descriptively, a "final" divorce) and "divorce a mensa et thoro" (English: "from bed and board").

    A divorce from the bonds of matrimony is a full and final divorce. You are legally allowed to remarry when you have been granted a divorce a vinculo matrimonii.

    A divorce from bed and board is more akin to a legal separation provided for in most states. You are not "fully" divorced (i.e., allowed to remarry) if all you have is a divorce a mensa et thoro (and that is why most people do not pursue this type of divorce).  Unlike in some other states, this "divorce from bed and board" status is not a required part of the final divorce process.  Your attorney may, however, suggest that you file for a divorce "from bed and board" to allow you to get before a judge when you otherwise have no grounds to request a divorce "from the bonds of matrimony."

    An annulment is not a divorce, but it does result in a severance of what one or both parties believed was a marital union. Annulments may be granted by the court only in certain rare cases, generally involving fraud, duress or lack of capacity to consent relative to the formation of the marriage itself. The legal effect is to void the marriage from the very beginning -- as if the parties had never married (except that children born during the purported marriage are considered born in wedlock.)  If for religious or other reasons you need or want an annulment, tell your attorney before the divorce is filed so that you can discuss it.  But to reiterate, if the marriage was legal to begin with, it cannot be annulled.

     There is no such thing as a "legal separation" document in Virginia.  If you are separated, you are "legally separated" (since you cannot go to jail just for being separated).  No court order or documentation is necessary to further legitimize the separation.  However, if you and your spouse are sure a divorce is imminent and are still talking, it may be advisable to begin discussing entering into a separation agreement (a/k/a Property Settlement Agreement) to handle civilly the issues that otherwise would need to be resolved in court.

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     In some isolated instances, a proceeding to pursue "Separate Maintenance" (sort of like alimony and spousal support) is advisable.  This procedure is, in the eyes of most attorneys, not the preferred method of beginning the divorce process. You are still married for most purposes. You usually wind up divorced anyway, and instead of paying for one lawsuit, you pay for two. Strongly held religious beliefs may make pursuing a divorce impossible for some, but the need for court intervention to make sure that appropriate support is being provided by one spouse to the other (and to the children) is necessary.  Also, sometimes jurisdictional grounds for divorce don't exist, but the need for court intervention is critical.  Pursuit of Separate Maintenance may be appropriate in these circumstances.  So might an action in the local Juvenile and Domestic Relations District Court.  Speak with your attorney as to the advisability of Separate Maintenance.

    The first step in a divorce proceeding is drafting and filing a document called a "Complaint." (Actually, the first step is exploring all of your options shy of a divorce, including marriage counseling, mediation, time out, etc. The next step is to discuss with your attorney the advisability of, problems with, costs of, etc., a divorce.  Only when the difficult decision to divorce has been made does any of the following stuff apply.)

    The Complaint sets out the vital statistics of the parties and of the marriage, states the grounds for divorce, addresses certain technical matters, and then asks the court for a divorce and anything else you might want (custody, support, property division, etc.). If you and your spouse cannot agree on something that you want, then you must ask the court for it in the Complaint.  If you don't ask for it up front or in later written pleadings, the court cannot give it to you.  If, when you review the Complaint the wording seems strange, remember that it is a formal legal document and much of the wording is required by law. However, the document should still make sense to you. If you see a mistake, let the attorney know. We made a mistake once (gasp!!).  It was in the date of the parties separation, and we mistyped the year--1997 vs. 1996.  When we discovered the mistake at the depositions, the client said "Oh, I saw that when I signed the paperwork.  I thought you meant to write it that way."  We started the divorce all over again (at our expense, since it was our mistake), but the client lost time.  Please, if you see a mistake, tell us. We are all human.

    The person who files for the divorce first is the Plaintiff (or sometimes "Petitioner"). The other spouse is the Defendant (sometimes "Respondent"). Once served with the divorce papers, the Defendant must respond to the Complaint by a formal document known as an Answer. The Defendant may also want to complain that the Plaintiff too (or only) was at fault. To do so, the Defendant files a document called a Cross-Complaint).

    There are limited tactical advantages for the person who files first, but in most cases, they are not significant.

     Once the divorce papers have been drafted and signed, they are filed with the proper circuit court (see "Venue" requirements, below, for a discussion on which is the proper court in which to file a divorce case), and a file is created by the clerk.  Since every defendant is entitled to be notified of any lawsuit filed against him or her (that is only sporting, isn't it?) the next issue is "how is that notification accomplished?"  Generally, the papers are sent over by the clerk of the court to the sheriff of the jurisdiction where the defendant resides, and the sheriff, or a sheriff's deputy, drives over to the house and serves the divorce papers. 

     The papers served are typically the Complaint (discussed above) and a separate notice prepared by the clerk of the court called a Subpoena.  Together they are called "process," as in "service of process."  The Subpoena is a document that advises the defendant that a divorce suit has been filed, that he or she has been named the defendant, and that the defendant has 21 days to file a response (an answer, a defense or other proper legal pleading) to the Complaint.

    The sheriff can serve the papers either "personally"  (i.e., the defendant is at home and is handed the papers in person) or through one of several substitutions to personal service:

a.  on a family member of the defendant's household who is over 18 years of age who regularly resides in the household

b.  by posting on the front door, so long as the place where the sheriff has been sent is the defendant's "usual abode." 

Defenses to the grounds for divorce that might be stated in an Answer include:

Denial--It didn't happen, or at least I don't admit that it did. The accusing party always has the burden of proving the alleged grounds for divorce. This is akin to pleading "not guilty" in a criminal or traffic court setting.

Condonation -- It happened, but I have been forgiven for it.  This is usually proven by showing that you and your spouse had sexual relations after the action (adultery, desertion, act of cruelly) that constituted ground for divorce was alleged to have occurred.

Recrimination--conduct by the accusing spouse that is of the same character and nature as the conduct that is alleged.  The proverbial "pot calling the kettle black" defense.  "Well you committed adultery too."

Reconciliation -- getting back together with the intent to live together again. Merely "sleeping together" on a rare occasion during the separation period does not equal reconciliation. Best to talk with your attorney for anything more.

Time Barred--the conduct alleged is too remote in time (happened too long ago) to be used as a grounds for divorce.

Technical problems in the pleading -- failure to properly allege the jurisdictional or venue requirements or other baseline elements for a divorce. Because it affects the very core of our societal make-up, divorce law has become a very precise and somewhat technical practice, requiring strict pleading requirements which, if not met, could result in the case being dismissed.

Common legal misconceptions, miscellaneous thoughts, things to ponder. (This link will open a new window.  Closing that window will return you to this spot.)

    For a Virginia court to be able to hear your divorce case (i.e., to have jurisdiction over your divorce), you (or your spouse, or both) must have been residing and domiciled in Virginia for the six months just before, and including, the day the divorce suit is filed. Special rules apply to members of the military: to be eligible to apply for a divorce in Virginia, the military member must be stationed and actually reside in Virginia for the 6 months just before the divorce suit is filed.

    The law requires that the divorce case be brought at a location that makes sense and that is fair to the parties. The term of art used by attorneys and judges to describe this location is called "venue," and the venue must be a proper one.  In Virginia, a divorce suit is properly brought in the Circuit Court of the city or county where the Defendant lives or where the parties last lived together. If the Defendant is not a Virginia resident (as therefore presumed not to really be interested in which particular city the suit is brought), the case can be filed in the Circuit Court of the locale where the Plaintiff lives. (Generally, when the Defendant lives out of state, no property or support rights can be affected by the divorce. A few somewhat complicated exceptions exist to this proposition, and you and your attorney need to discuss these exceptions in the appropriate circumstance.)

    "Pendente lite" (pronounced by different judges in about 5 different fashions, but always written the same way) is Latin for "pending the litigation." The term comes up a lot in divorces, so you should be familiar with it.  Pendente Lite relief refers to matters that need to be resolved at the very beginning of your case. There are many things you may need the court's input on early on, such as determining temporary custody and visitation rights, temporary support, ordering certain living arrangements, stopping harassment, giving possession of the car, freezing assets, and the like. Upon request, the divorce judge will set a hearing to determine the needs the parties and the best interests of the children, and make orders accordingly.  Pendente Lite relief is temporary in nature and is subject to rehearing at the final divorce trial.
     Note: the pendente lite hearing is typically very short (30 minutes--that means 15 minutes per side).  It is not the time when you will be presenting your adultery or physical abuse evidence.  While your attorney will attempt to get in information as to why you deserve the house or a certain level of support for the time being, it is not your trial.  The court's sole goal at this hearing is to send the parties to neutral corners, and on a relatively equal playing field.  Custody (of the children or of the house) is not permanent, and any support and temporary possession of property which may be ordered is subject to radical change at the final hearings when the rest of the evidence is presented. (Of course, when one party ends up with the children and the house pendente lite, it will hardly be viewed by the other as even close to an equal playing field, but the alternative is worse--longer hearings mean longer dockets, and even longer delays to get to see the judge.  Right now it takes weeks to get on the docket.  Before the streamlining, it took months.) 
    Some courts have even streamlined the pendente lite process to the point of publishing guidelines for the establishment of child and spousal support.  (Actually the guidelines for pendente lite child support are the same as the published state guidelines. The big change was the development of a spousal support formula, and intertwining it with the child support amounts.)  Courts that use these formulas follow them religiously (but variations are possibly in unusual situations).  If custody and possession-of-property issues are not in dispute in these jurisdiction, the result of a pendente lite hearing becomes so predictable that support matters settle quickly, and the attorneys can move on to the big stuff.  Other courts use similar formulas, but don't publicly announce that they do, and don't publicly publish them.  They can vary from them when they find it appropriate.  What it means, however, is that the result is less predictable, and pendente lite settlements are not as quickly reached. If experienced, your attorney will know which judges are using which formula, and how close each sticks to it.

    After the parties have set out their respective claims, a process called "discovery" usually follows. Discovery can include written questions, known as "Interrogatories," or demands for certain papers or documents,  know as "Request for Production of Documents." Discovery can also include a request for face-to-face questioning of you or your spouse, or others, before a court reporter known as a "Deposition."  You will hate the discovery process. It will cost you a lot of money, and it will take up a lot of your time. But it is an essential aspect to the proper processing of a contested divorce. If you understand at the beginning as to why discovery is done (for both parties to find out, under oath, as much as they can about each other's assets and worth) then you will not be so distressed as you are going through it.

    Negotiations can lead to a settlement on issues merely pendente lite (remember that term?), on some issues and not others, on all issues, and in the rare case, on no issues.  Negotiations are aimed at reaching a deal that both parties think the judge is going to order them to live by. If you (or your attorney) think the judge will give you more than the current offer, you can reject the offer and still be negotiating in good faith.  Negotiating does not mean conceding, although compromising certain items is a essential aspect of the process).  It means talking and working toward resolving things where a resolution is possible.  Negotiating is not "I expect to get everything that I want, and not a penny less."  Even if you somehow got everything you asked for, you probably spend more money on attorneys fees, or more on aspirin for the headaches you created for yourself, than it was worth.  Remember: if the sofa you "must" have  is worth $200 and the attorney's fees will be $500 to (maybe) win the sofa for you in court, you are probably better off giving up the sofa, saving the 500 bucks, and buying a brand new couch.

    As you go through the negotiation process, remember these undeniable truths:
 

•         Life is not always fair.

•         The judge will not see things precisely your way.

•          No party is 100% at fault

•         There are two sides to every story.

•         Even Attilla the Hun had his good points.

•         You can never cram the events of your entire marriage into a one day trial (especially since your spouse is entitled to half of the time to present his/her side).

•         While adultery is offensive to the judge, and while the judge may understand that it devastated you personally, the judge has heard cases like yours dozens of times before.  It is unlikely that your case is so different from those the judge has already heard as to cause the judge to vary from the pattern he/she has already developed in similar cases (and which your attorney had been twisting your arm to recognize.)

•         It is easier for the judge to award each of you fifty-percent of the marital assets than to articulate a reason not to.

•         It is easier for the judge to divide the difference between your and your spouses last offers than to articulate a reason not to.

•         A fair resolution to a case has generally been achieved when both parties are a equally miffed.

•         Things always get worse for both parties as a result of a divorce, at least for a while.

•         Financially speaking, two cannot live as well apart as they were living together.  And the judge will not take all of your spouses income and give it to you just because you may be the totally innocent spouse.

•         You are almost always better of settling than litigating.

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    Where children are the subject of controversy, the court can, and lately usually does, order the parties into at least one mediation session to determine if this method of conflict resolution will work.  If you are ordered into mediation, do go with an open mind.  It can be a wonderful process, and think of all of the money you will be saving to spend on yourself and the kids.

     There are several good local mediation services listed at the bottom of this article in the "Links" box who you may wish to check out.

    Despite the affinity we have for mediators, we feel that the actual Separation Agreement should be written (or at least reviewed before signing) by an attorney.  The Separation Agreement is an exceptionally important legal document that in our humble opinion does justify the expense of getting an attorney involved.  Plus, you will get a "second opinion" about whether your agreement is reasonable and if important topics were overlooked.  (An opinion from attorney at this stage should only be to determine reasonableness, not "Can I do better than this in court."  Sometimes a judge will award a party more than was achieved through successful mediation, but that does not mean that things are better.)

       If a Property Settlement is reached through negotiation, mediation or luck, then you can proceed to:

    In an uncontested divorce case, you probably will not need to appear in court to testify.  You need only to come to your attorney's office at the time that is preset with him or her, and bring one witness with you to testify on your no-fault grounds for divorce. The testimony is typed up and sent to the judge in writing. The process is called a "deposition." (In certain jurisdictions, most notably Hampton and all of the Southside Hampton Roads cities, the deposition is taken in front of a quasi-judge person called a Commissioner in Chancery. The Commissioner listens to your testimony and that of your witness, and recommends to the judge whether you have proven your divorce grounds.  It's a bit more expensive, but you really have no choice in the matter.)

    If after all of the pleadings are in, all of the discovery is done, and (unfortunately) after all of the negotiations have failed, it is necessary to prove your (or defend against your spouse's) allegations. This is done at a hearing in front of the judge or at the offices of a commissioner in chancery. If the evidence is presented to a commissioner, all of the testimony is taken down by a court reporter and preserved. The commissioner will file a report with the judge who appointed him, making recommendations regarding the contested issues. The parties (through their attorneys) may file exceptions to the commissioner's report and argue those exceptions before the judge. The final decisions will be made by the judge.

    Once the judge has heard all of the testimony, reviewed all of the evidence, confirmed the substantive and technical requirements of granting the divorce, and is satisfied that all requirements for a divorce have been met, he or she will declare that the parties are divorced.  If a separation agreement has been submitted by the parties for approval by the judge, the judge will make the separation agreement a part of the final decree. If there are contested issues which require the intervention of the judge to resolve, the judge will announce his rulings and those matters will also be contained in the final decree. Once signed by the judge, you are divorced. Your divorce will be final and unappealable thirty days after the judge signs the final decree (assuming that no appeal was filed.)

    The legal requirement for a separation requires at least separate sleeping arrangements and an absence of physical relations. Separate residences are generally the best, although courts have on rare occasions granted a divorce even if the parties are living under the same roof.  (Proving the separation is hard if you do not have separate residences.  You will have to have separate residence sometime, why not now?)  Renewing physical relations may dissolve your grounds for divorce. (The Supreme court of Virginia has ruled that incidental and infrequent sexual relations will not necessarily restart the separation period clock." Other factors need to be considered.) 

   Reconciliation after a divorce may have tax consequences you need to explore.  A reconciliation may or may not cause any written separation agreement to be nullified.  See your attorney regarding this.  However, given a choice between the consequences related above and saving a viable relationship, we would certainly encourage reconciliation.

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    Virginia has adopted the "equitable distribution" model of dividing marital assets.  This model is distinguished from the "title" method (if it is in your name, you get it, and your spouse can't claim an interest in in), and from the "community property" model (it's half mine, regardless).   "Equitable" means fair, and a fair distribution of the marital assets is the goal of the process.  Click on the above link to get a quick look at the statute, and especially the definition of "marital property."

   To determine who gets what marital property, the court will consider: the contributions, both monetary and non-monetary, that each party made toward promoting (or destroying) the family unit,  contributions to the acquisition, care and maintenance (or dissipation) of the marital property, the length of the marriage; the ages, health, skills, and abilities of the parties;  the relative ability of each party to acquire property in the future;  tax consequences attendant to the award of a certain piece of properly; liens associated with a particular piece of property; and  such other factors that the court considers appropriate to achieve a fair and equitable division of the marital property.  Simple enough, no?

    It is critical that you tell us all you know about your and your spouse's assets. The more we know, the more we will be able to help you.  Property includes assets as well as liabilities; real estate; and personal property; both tangible and intangible. Property can include houses, furniture, pensions, life insurance policies, annuities, retirement plans, businesses, coin collections -- almost anything.  First, we must find and value the property. Next, we must determine whether the particular piece of property is separate property (and remains with the person who owns it) or marital property which the court can divide.  Separate property is generally that property which a party acquired before the marriage or outside the marriage, such as by gift or inheritance, and kept a separate during the marriage (i.e., no commingling with marital property). Marital property is usually property and property interest that were acquired during the marriage. Property is presumed to be marital.

    . If you and your spouse can agree on how things will be divided and have reduced that agreement to writing  (i.e., a written Property Settlement Agreement), it will be approved by the court in 99.99% of the time, and your case will essentially be over.  If you cannot agree, the court will divide the property the property for you.  Not fun, very expensive.

    Do not hide assets. These assets are usually found and if they are found, you will look like a crook to the court. The judge will have trouble believing what you say about anything after that.  The judge will not, however, have too much trouble assessing attorney's fees against you (in favor of your spouse) for your behavior.

    Debts are kind of like negative property.  Marital debts are considered by the judge in making an equitable distribution award.  So make sure that your attorney knows about these debts.  If you want to assert that the debts fairly ought to be assessed totally against your spouse, you must prove the fairness of this.  Therefore, keep credit card statements, receipts, etc. showing that the jewelry purchase was not a marital purchase, but was for the boy/girlfriend who broke up the marriage.  Only debts that existed on the date of the parties' separation will be considered by the judge for "division."

    Despite an agreement (or court order) for one spouse to pay a debt that is in both parties' names, if the party responsible for the debt does not pay the debt, the other party can (and usually will) be sued for the debt by the creditor. This is because the credit card company was not privy to the negotiations or litigation between you and you spouse.  You cannot affect the rights of your creditors simply by filing a divorce.  (For example, the husband agrees to pay the Master Card, and then refuses or is unable to do so because of death, bankruptcy, job loss or just plain meanness.  In any case, Master Card can still sue both the husband or the wife--or either one of you--if the payments are not made--except if your ex-spouse files for bankruptcy, in which case only you can be sued.)

    If your spouse files bankruptcy, it may still be possible to enforce the Separation Agreement or Court Order.  See your attorney as soon as you receive bankruptcy paperwork from your spouse. Time is of the essence.

    If you spouse is not paying the debts that the court ordered him or her to pay, but has not filed for bankruptcy protection, you may be able to take your spouse into court on a contempt action.  Again, see your attorney about how to go about doing this.

    Alimony may be temporary and rehabilitative, or permanent. (Even "permanent" support can be modified or terminated based on a significant change of circumstances in the life of the payor or payee. See three paragraphs down.)  In practice, alimony is generally awarded from a husband to a wife, but there is no reason other than societal (i.e., the husband is usually in the financially advantageous position due in to choices that tend to conform to traditional societal patterns) why the situation cannot be reversed. Alimony is based upon the relative needs and resources of the parties.

    The legislature set out criteria for the court to consider and they include the following:

    Contributions, monetary and non-monetary to the well being of the family; education and ability of the parties, as well as opportunities for additional education, to earn money in the future; length of the marriage; age, relative physical  and mental conditions of the two parties; whether or not one of the parties should currently stay (or in the past has stayed) at home with a child of the parties instead of working; the separate property a person has; income from salaries, investments, pension profit-sharing, and retirement plans; the marital property a person will receive; the standard of living the parties enjoyed during the marriage; contributions of one party to the education, training, or increased earning power of the other party; fault of one of the parties; tax consequences; and last, but not least "such other factors that the court considers appropriate." You may wish to scan at this time Virginia Code Section 20-107.1, which is the main Virginia statute dealing with alimony.

    Spousal support (even "permanent support") can be raised or lowered or terminated over time if there is a change of circumstances in the life of the person paying support or the person receiving the support. Living with someone after the divorce, regardless of whether you marry or have sex, may cause alimony to be lowered or stopped.  Death of one of the persons paying or receiving alimony or marriage of the person receiving alimony will terminate alimony (unless a separation or divorce settlement agreement provides otherwise).  Significant increases or decreasing in income for either (ex-)spouse  may result in a change.  One warning to those who don't now need, but in the future may need spousal support:  make sure your lawyer reserves for you the right to ask for it later-- if you have not been awarded alimony at the time of the divorce, and fail to reserve the right to ask for it at a later time, you cannot get alimony. . .ever.

     Common myth about alimony:  My wife works.  Therefore she cannot get alimony, right?  Wrong!  If a spouse is just getting back into the job market, it generally will be at a lower rate of pay than the spouse who has worked during the whole marriage.  Alimony is designed to somewhat equalize lifestyles, at least for the near term.  This objective would hardly be met if the husband, who earns, let's say, $75,000 per year, has no obligation to help maintain his (ex-)wife who stayed at home, raised the kids, just recently got back into the job market, and is currently only earning $15,000.

    The most frequently posed question at the initial consultation is "what are my rights?"   In response to that question (and after the attorney has known the client barely 2 minutes), many clients honestly expect the attorney to be able to detail exactly how the property is going to be divided, how much support is going to be paid, and who is going to pay the MasterCard. ("We have been married three years, we have one car, and we both have been paying for it.  So, who gets the car? And who has to move out?" )  You need to understand that it doesn't work that way.  The statute was written generally, and not with your specific facts in mind.  There are many factors that have to be weighed before the attorney can even begin to guess (and it's only a guess) what the judge is going to do with your case.  Besides, divorce essentially is not a matter of "rights." (Not trying to be snide, but you gave them up when you got married.)  It's a matter of obligation:  to your spouse, to your children, to the system to which you obligated yourself when you took your vows.  If anything, this booklet should be getting you to begin thinking about what your obligations will be in the future, not what your rights are.  The only answer to the question "what are my rights?"  is "Whatever the judge says they are."   The better question is "What can you tell me about the process, and how can we do it with the least amount of damage?"   If you ask that one, maybe we won't need to even see the judge.

    That said, you actually do have one right, and that is the right to be treated fairly and expect the same from your spouse and the system.  Your obligation is to reciprocate, and work with your attorney (and, yes, even your spouse) to try to achieve fairness and equity.  Your expectation should be no higher than that.

    Sometimes people get into big fights over small things. One couple filed for divorce and agreed to nothing, despite all the money they poured into ignoring the advice from their respective attorneys.  The case went to court and the bickering was so bad the judge refused to hear any more of the parties petty squabbling.  The parties were ordered to submit themselves to a Commissioner in Chancery for recommendations. With the help of the Commissioner and their very expensive attorneys, and after much yelling and fighting, they sold their house, set alimony, sorted out custody, and agreed to child support. They were down to dividing the contents of the house, and as they were about to finish, they came upon seven crystal goblets.  The wife said, "I want four and you can have three so that our two children and my dear mother can come over for dinner and discuss the problems you have left us with."  The husband responded, "I'll take four goblets and you can have three so I can have our children over for dinner along with my girlfriend, and the children can see how a man and woman who love each other behave." The yelling and screaming began again. The Commissioner had all that he could take. He grabbed one of the goblets and threw it into the fireplace, shattering it into tiny bits. He said, "Now, you each have three and you can bill me for the broken one."  That ended the case and it also ends this booklet.

Press here for scary article which we title: This can be you!

A bit of humor: Kid's on Marriage  (Warning: Do not read it if you are currently in a bitter mood).