My husband and I are currently separated. I don't even know what THAT means, and I need to know how divorce works. I have 3 children to care for and need some guidance. I have a job, but money is TIGHT. I don't know how any of this works, so any and all information is GREATLY appreciated. Can I file for child support while we're still married? Do we have to be separated for 'x' amount of months before divorcing? How do we divorce? Who should file for divorce? What do I have to do to protect myself and my children?
There are a multitude of answers to your question and legal issues to cover -- more than can possibly be adequately covered in this type of forum. I would strongly recommend that you schedule an initial consultation with a family law attorney in your local area as soon as possible. Some attorneys do charge for an initial consultation and some attorneys offer free initial consultations (usually limited to 30 minutes), so shop around.
By way of a very broad, brief overview:
There is no legal separation in Virginia -- you are either married or you are not married. Being "separated" just means that you and your spouse are not cohabitating as husband and wife. In order to be granted an absolute divorce in Virginia (with minor children), you and spouse will need to have been living separate and apart, without cohabitiation, for a period in excess of one year (i.e., one year and a day). The only exception to this rule is if a divorce is granted on the basis of adultery.
How long you have to wait to file for the divorce depends on the circumstances of the divorce. If one or both of you have grounds to file for divorce based on marital fault (adultery, abandonment/desertion, cruelty and constructive desertion, etc.), then the party with the marital fault claim can file at any time. If the case is heard prior to the expiration of the one year separation period, then the court would grant a divorce a mensa et thoro (divorce from bed and board) that could then be merged into a divorce a vinculo matrimonii (absolute divorce) at the expiration of the one year period.
You can petition the court for child custody, child support, and/or other support and maintenance (spousal support) either as part of a divorce action (in Circuit Court), as part of a suit for separate maintenance (in Circuit Court), or as separate petitions in the Juvenile & Domestic Relations District Court. The court in any of these actions can enter temporary orders (pendente lite) prior to a final hearing on the ultimate matter at issue.
There are pluses and minuses to each option.
In the divorce case, you can have the court issue temporary orders to preserve marital assets for example.
Where there is insufficent basis for filing a fault based divorce complaint but there is a case for spousal support, a suit for separate maintenance may be a good alternative -- all the same discovery would be done in that case as in the divorce case and the court can do all of the same things as in the divorce case (except grant a divorce and divide property). When the one year period has passed, a divorce complaint could then be filed and you can request that the two cases be consolidated.
Filing for custody and support in the J&DR court is a little easier for people who do not have an attorney and the cases tend to move much faster than in Circuit Court. However, if either party is unhappy with the outcome in J&DR, then that party has a right to an appeal de novo to the circuit court (which means the case gets tried all over again in circuit court).
You also may not need to need to go to court if you can work the issues out with your spouse by written agreement, which is always preferrable in my opinion (especially where children are involved). If you and your spouse can resolve all of the issues with a comprehensive settlement agreement, then either one of you could file for an uncontested, no-fault divorce once you have been living separate and apart for the requisite period of time. A written settlement agreement is something that you should have an experienced family law attorney negotiate and draft for you.
Once your attorney has sufficient background information about your case and your current situation, they will be able to better assess which options may be better for you and make appropriate recommendations.
Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.
A legal separation and a divorce are different because a separation does not end the marriage. Spouses live apart and remain married.
Written by attorney Jonathan Kroll
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