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The Divorce Process

For someone learning about divorce for the first time, the topic can be overwhelming. The Divorce Process can seem complicated. While this section will address many of the ways you can get divorced in Virginia, here are two ways that are often used:

Major Milestones in 2 different types of Divorce Cases

1. Litigation

Hire an Attorney
Initiate Pleadings

Discovery

Temporary Support
Hearing
(Pendente Lite)

Trial

 

2. No Fault Divorce / Separation Agreement

Hire an Attorney
Draft Sep. Agmt

Negotiate with
Spouse/Atty.

Sign/Execute
Sep. Agmt

Uncontested
Divorce Trial

 

There is not just one way to get divorced in Virginia. You may have heard the terms litigation, negotiations leading up to the signing of a Separation Agreement and No-Fault Divorce, alternative dispute resolution, mediation, and collaborative divorce.

Any one of these methods can be utilized in a divorce case – and sometimes even a combination of two of them – depending on the facts or circumstances. For example, sometimes one party will begin litigation (meaning filing official documents in Circuit Court to initiate the law suit). It sometimes happens where the attorneys then meet, negotiate some terms on behalf of their clients, and ultimately negotiate a Separation Agreement without the need for litigation. That kind of case then ends in a No-Fault Divorce case.

Why can’t a military JAG Attorney represent me in my divorce case?
Before we discuss each of the various ways you can get divorced, it is important to address one question that comes up a lot. Many folks ask why a JAG Attorney cannot represent one or both of the parties in a divorce case? The simple answer is that all divorce cases in Virginia are handled in the civilian court system – namely Circuit Court. Issues that arise before a divorce case is initiated involving children, child support and spousal support are often handled in a different civilian court, namely the Juvenile and Domestic Relations District Court. First, a JAG Attorney stationed at a local Legal Service Office in Virginia may be licensed in a different state. One of the prerequisites to becoming a JAG Attorney is to be licensed in one of the 50 states – it doesn’t matter which one...and JAG Attorneys change duty stations to various states and overseas, just like other active duty folks.

For example, when Matt Hamel first was stationed in Norfolk as a JAG Attorney and prosecutor, he was a licensed attorney in Pennsylvania and New Jersey – but not Virginia at that time. He could litigate in the military courts in Virginia but not in the civilian courts here. It was not until he became licensed in Virginia that he could that. On top of that, the JAG Attorneys that do legal assistance for service-members and their dependents have full case-loads on active duty – doing things like drafting wills and powers of attorney, and often helping service-members exercise their rights under the Servicemembers Civil Relief Act. There are a few other services that the military legal service offices will do for service-members – such as providing a military defense counsel if the service-member is charged with a crime under the Uniform Code of Military Justice or even represent a service-member at an Administrative Discharge Board.

You are encouraged, however, to go to your local military Legal Service Office on base and speak with a JAG Attorney. You can get advice and it will not cost you anything as long as you are a service-member or eligible dependent. You can verify all of the information found here and ask questions about the divorce process as well.

Now back to the Process…

The two most common methods for divorce and the ones we focus on are: 1) litigation; and 2) negotiations leading up to the drafting and signing of a Separation Agreement and then No-Fault Divorce.

Litigation
Litigation is the costlier of the two methods because you are battling out the issues in court. The divorce process is initiated when one side files a Complaint (or Complaint for Divorce) against the other side. The person filing the Complaint is known as the “Plaintiff” and the person receiving the Complaint would then be the “Defendant.” The Complaint is a legal document otherwise known as a “pleading.” In the Complaint, there are various facts like the date of marriage, date of separation, names and birthdates of the children, location of the marriage, the parties’ current residence and each party’s location at the time of separation. The Complaint will also state each party’s military status, grounds for divorce, and fault or no-fault status.

The Complaint is then filed in Circuit Court for the city where the divorcing couple last lived as husband and wife or, alternatively, where the defendant currently resides. It is important to note that simply filing the Complaint in Circuit Court does not actually initiate the lawsuit. The Complaint must then be “served” on the Defendant so that he or she is aware of the case against him or her. This is known as “Service of Process.”

A Complaint can be served on the other party either by a private process server or a Sheriff. Once the other party (Defendant) is served the Complaint, he or she then has 21 days to respond. The document that is filed by the Defendant in response is known as an Answer. Oftentimes, a Defendant will list allegations against the Plaintiff as well, and this is known as a Counterclaim.

This all sounds simple enough – but one issue often arises in military divorces that sometimes throws a wrinkle in the process. If the service-member is stationed outside Virginia, it can be challenging to make sure the Service of Process is properly accomplished. This can normally be resolved fairly easily with the help of a skilled attorney.

One other thing to be aware of in a Virginia divorce case – Residency and Domicile requirements. At the time the divorce case is filed, either the Plaintiff or Defendant must be and must have been an actual bona fide resident and domiciliary of Virginia for at least the preceding six months. These facts supporting the residency and domiciliary requirements must be supported in the Complaint. Domicile means that a person lives in a place permanently –or at least indefinitely. Upon your separation, you may establish your own separate domicile.

If this sounds complicated, it usually can be explained in simpler terms by an attorney. There is also a special rule governing residence and domicile for members of the armed forces. The governing statute provides the following: If a member of the armed forces of the United States has been stationed or has resided in Virginia for a period of six months or more immediately preceding the commencement of the divorce suit, then that person is presumed to be domiciled in and to have been a bona fide resident of Virginia.

The Discovery Process
So what happens next in the process after the complaint and counterclaim have been served on both parties? Normally, the next step is the “Discovery Process” or simply, “Discovery.” This can mean more documents are served on either party. For example, in some cases, an attorney will file a “Request for the Production of Documents” and a “Request for Interrogatories.” These documents are designed to produce answers about many aspects of the case. Sometimes it is beneficial to find out how much income the other party earned in the past year or years so that an appropriate amount of spousal or child support can be calculated. Sometimes, there is damaging evidence that one side wants to receive about the other.

There isn’t one way to get through the Discovery Process and an attorney can discuss which documents are most relevant and beneficial in a specific case. For example, there is also a pleading (or document) that is entitled a “Request for Admissions.” In this document you ask the other side to admit to damaging facts or evidence.

Again, it’s important to discuss a strategy with your attorney to find out which documents are most beneficial to your case. Remember, the other side will likely be asking for the same information from you.

The Temporary Support Hearing
At some point shortly after the divorce case is initiated, a party can ask the court (or move the court) to hold a temporary support hearing. This is also known as a Pendente Lite Hearing. This type of hearing permits you or your spouse to ask for temporary help pending the outcome of your divorce. If necessary, the court can temporarily order exclusive possession of the marital home to one of the parties, custody and visitation of minor children, fees to carry on the suit; non-harassment conditions; and a limited number of additional orders regarding the marital assets and other issues such as temporary child and spousal support. As of July 1, 2011, a Judge can also order joint and/or individual debts be paid by one party at a Pendente Lite Hearing.

Putting on one of these Pendente Lite Hearings can be complicated – and almost like a mini-trial within a larger divorce case. It is important to speak with an attorney to make sure the proper papers are filed, the proper evidence prepared, the proper evidence requested from the other side before hand, and most importantly, that the evidence is presented to the Court in the best way possible. At this stage of the process, sometimes a family is split into two households for the first time and the same amount of money that was supporting one household is now supporting two. It is important to set realistic expectations as this is often an extremely stressful time and some families even had financial troubles to begin with.

Another reason why a Pendente Lite Hearing should be taken seriously is that once a Judge rules at this hearing, the parties will most likely be stuck with the result until either the divorce trial occurs (which can be many months down the road) or unless or until the parties agree otherwise.

The Divorce Trial
Finally, the last big step in the Litigation process is the final divorce trial. Divorce trials in Virginia are in front of a Judge. There are no jury trials in divorce cases in Virginia. Both sides will have opening statements, put on evidence, call witnesses, and sometimes even call expert witnesses or consultants in addition to fact witnesses. The parties then also have an opportunity to make a closing statement to the Judge. This is an extremely over-simplified description of a final divorce trial and you should most certainly speak with an attorney about all of the details about your trial. Once the parties rest their cases, the Judge then deliberates and issues a ruling.

After the trial, the attorney will draft a final Decree of Divorce based on the court’s decision and it will be entered by the court. That is then the order of the court and all parties are bound to abide by it – even if they dislike the outcome.

If either party believes they were granted an unfair judgment, they can file an appeal. Appeals can be costly and extraordinarily difficult. If you believe the ruling of the court was legally incorrect, you can appeal. This appeal must be filed with the Court of Appeals within thirty days from the date of the Circuit Court’s final order. In very rare circumstances, the Supreme Court of Virginia, at its discretion, can certify a case for review.

The factual findings of a trial court will not normally be changed on appeal unless you can show that the order was plainly wrong and that it was not supported by a preponderance of the evidence. It is extremely difficult in most cases to overturn a case from the trial level and all the more reason to take the trial (and all aspects of a divorce case) extremely seriously. You should consult with your attorney often along each step in the litigation process.

Is there an easier way?
The good news is that there are easier ways to get divorced. The litigation method listed above is the costliest, lengthiest and most stressful. Unfortunately, it is sometimes necessary when the parties cannot agree or compromise. However, in the event the parties can negotiate, there are a few other ways to more economically get divorced.

The Separation Agreement
There is a link on this website that talks in great detail about Separation Agreements. A Separation Agreement is really a Marital and Property Settlement Agreement. It is essentially a contract or document that settles all aspects of a case – the financial aspects, property, custody of children, visitation, military benefits, retirements and a host of other issues. A couple can negotiate a Separation Agreement without filing any documents in court. Once the separation period has passed, a divorcing couple can file what is known as a No-Fault Divorce and incorporate the Separation Agreement into the Final Divorce Decree. It is important to note that a divorcing couple with children needs to be separated for minimally 12 months before a court will grant a divorce on No-Fault grounds. If there are no minor children and the parties have entered into a Separation Agreement, then the separation period needs to be minimally six months.

There can be negotiations between attorneys and there can also be “Settlement Conferences” where the parties sit down at a table with their respective attorneys present and try to work out the various issues. In many cases, it is possible to negotiate many of the terms of a case and then either have a No-Fault Divorce trial or at least a trial on a limited number of issues. An attorney can discuss with you all of the aspects of a Separation Agreement and No-Fault divorce to see if this might be right for your case. There is also the link above that further explains Separation Agreements.

Alternative Dispute Resolution
It is important to mention that if you are considering another route to negotiate the terms of a divorce settlement – for example, mediation or collaborative divorce, it is necessary to have all of the discovery in your case. In other words, it wouldn’t be fair to negotiate terms in your case when you are not certain about all of the assets that your spouse may have or if you unaware of all of the income of the other party.

If you are confident that negotiations can be completed in good faith, then there are other ways to resolve a divorce matter.

Mediation
Mediation is a process where the parties to a divorce are assisted by an impartial, professional mediator in reaching an agreement on the issues in the divorce. This is not in a court, but rather in a setting where you can discuss issues such as child/spousal support, custody and division of assets (property). The mediator is not there to reconcile the parties (like a therapist potentially would), but rather assist in finalizing a settlement without the stress and hostility of the court system. The mediator can be an attorney, but he or she is not there to give specific legal advice and will not make sure that any agreement is fair. This is your responsibility and you should be prepared to know in advance what you are willing to settle on and similarly willing to walk away from the mediation. You can always resort to the courts. As mentioned throughout this website, it is best to consult an attorney to understand what is a fair settlement of the terms of your case and to make sure you have made an informed decision.

Collaboration
Collaborative law is a rather new development in the alternative dispute resolution arena in Virginia. It is not like mediation in that there is no neutral third-party in the decision making process. In the collaborative model, each side is represented by an attorney that is trained in collaborative law. There is also a team involved that may include a neutral financial specialist, divorce coach for both sides and a neutral child specialist among others. All of the parties (with the help of the collaborative team) then engage in direct negotiations in a conference like setting.

There are several words of caution here. The Collaborative Law model is premised on the fact that both sides will voluntarily disclose all relevant information. If these proceedings break down, there are also special rules involved where the attorneys cannot later represent either party in any litigation about the divorce. The idea is to work together as a team to problem solve and come up with creative ideas. This process can be an easier way to get through the divorce process – but it can also be tricky and expensive. If both sides aren’t willing to disclose absolutely everything or if you are skeptical that the other side is concealing any information, then this particular process is not likely for you.

Final Words – The Divorce Process
As you can see from this section, there are many ways to get divorced. By far, the two most often used in our practice are: 1) Negotiations leading up to the drafting of a Separation Agreement and No-Fault Divorce; and 2) Litigation.

You may be wondering how a military divorce fits into the “process.” The answer is actually quite the same. The divorce is still handled in the same civilian courts. The only difference is that the various military issues need to be properly addressed in court so that the Judge can make the appropriate rulings with regard to each issue.

It is important to consult with an attorney to find out which method may be the best way for a particular case – and to make sure that every issue in your case is addressed, particularly the military related benefits and issues. The Divorce Process can be lengthy and costly. You deserve to be informed about the process, which method is right for your case, and the relative costs associated with each. Please consult with an attorney to develop a strategy to best achieve your desired goals and outcome.

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Military Divorce PC.com

Tel: (757) 961-3321|Fax: 757-490-7804|E-mail: Lawyer@MilitaryDivorcePC.com

One Columbus Center, Suite 600 Virginia Beach, VA 23462

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