My husband was in jail from Dec 26, 2011 - Feb 6, 2012. I found out because earlier in January, he told me his court date was on the 6th, so when I called the clerk told me he was in the midst of being released.
Well, he's given myself and our daughters no call, no visit or anything. He had been cheating on me for the most part of our marriage, so I'm assuming he's run off with his girlfriend and doesn't plan to see us or talk to us at all. Obviously, I want to get a divorce, but I'm told VA law allows divorce only after a year separation. Can I still file child support, even though we are still legally married (though separated)? Can I get divorce due to abandonment?
He was the breadwinner for our family and I take care of the kids 100% of the time. What are my options, monetary-wise?
Our daughters are 2 years old and 5 months old.
Divorce / Separation Lawyer
You have a few options for how you can file for support in Virginia: filing directly with the Division of Child Support Enforcement (DCSE), which does not involve a lawyer; filing for support and custody in Juvenile Court, which you can do without a lawyer but is sometimes faster with a lawyer; and filing for divorce in Circuit Court, which is hard to do correctly without a lawyer. If you try the DCSE or Juvenile Court you can still file for divorce later.
You probably are eligible to file for divorce immediately on "desertion" grounds, although a conversation with a local divorce lawyer would help you make sure of that. If you try to look at the Virginia Code yourself, it looks like there is a waiting period even for a desertion divorce, but in practice, the way lawyers file divorce cases, there isn't one.
Divorce / Separation Lawyer
I am so sorry you are going through this. The local courts will absolutely give you an award of temporary child support but you will need to file an action in court. Please chat with a local VA attny there are many great ones here on avvo and they will help you, the courts are there to protect you and you will be fine, don't listen to rumors, chat directly with a local attny. take care.
Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.
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Family Law Attorney
Legally/technically you can obtain an absolute divorce in Virginia without a one year separation under the following 2 circumstances: (i) you prove that the other party committed adultry and the court awards you a divorce on that basis or (ii) you have no minor children, a comprehensive property settlement agreement that resolves all issues of property and support, and have been separated for at least 6 months. In all other instances (including a fault-based divorce on the ground of abandonment/desertion), you must be separated for a period in excess of one year in order to be awarded an absolute divorce. Prior to meeting the one year separation period, you can be awarded a divorce a mensa a thoro (i.e., a divorce from bed and board, which does not allow either party to remarry).
As a practical matter, you will not be able to get a fault-based divorce case through the court system in Virginia in less than 12 months, especially when there are issues such as child custody, support, equitable distribution, and grounds of divorce which will be litigated in separate proceedings even if filed as part of one case. So, as a practical matter, with minor children of the marriage, it will take you at least a year to get a divorce in Virginia.
Yes, you can file for child support (and spousal support) if you are married but not receiving support from your spouse/children's father. This can be done by one of three methods:
(1) file separate petitions for custody, visitation, child support, and spousal support in your local Juvenile & Domestic Relations District Court
(2) file a Suit for Separate Maintenance in Circuit Court (in which you would request that the court determine custody, visitation, child support and spousal support)
(3) file a Complaint for Divorce (based on fault ground of abandonment/desertion of the marriage) in the Circuit Court (in which you would request the court determine custody, visitation, child support, spousal support, equitable distribution, and award you a divorce).
In any of the above listed actions, you can request pendente lite support be awarded (for child support and spousal support).
I would recommend that you consult with a family law attorney in your area to discuss which of these options would be best for you, etc.
This response does not create an attorney-client relationship and is intended for general information purposes only.