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What To Do About Divorce in Virginia once you're past Marital Counseling

Posted by attorney Susan Fraser

If you're past the marriage counselor recommendation, then you need to gather your evidence as to marital assets and debts. Both parties have a right to equal access to financial marital information such as bank accounts, tax returns, history and evidence of major purchases (usually defined as being a purchase of an item for over $500.00 if you live in an affluent area, or over $100.00 otherwise): do NOT engage in 'information hiding'- this is reprehensible and simply ends up costing each of you more money in litigation fees. Take a copy of all important documents, and leave them with a friend, but do not do anything to the originals. Depending on the length of the marriage, you may end up with a large copying bill: that's something that you have to budget for, because most banks, creditcard issuers, etc. don't keep records going back more than five-to-seven years at most, and they will charge you for the privilege of getting their copies- for example, four years' worth of copies of bank statements recently cost a client $500.00 from the bank. Take your originals to one of the local copy-shops, and at $0.08 per page, it's a bargain.

What to copy? Bank statements; creditcard statements which show 'big ticket' items; evidence of purchase of big-ticket items; evidence of gifts from persons other than your spouse; correspondence from lawyers, accountants, and others who have been involved in your family's financial affairs, prior year's tax returns going back to the year prior to your marriage- all of these (if they've been important enough for you to keep) should be copied. Then return the originals so that your spouse has access to them. If can you afford it, get a pdf copy made so that you have that 'just in case'. Keep your copies with a friend just so your spouse doesn't do something foolish like trash all of the documents which show your separate property: remember, all property is presumed marital in Virginia, so it's up to you to prove that something was/is your separate property.

Try to figure out what is fair in terms of the division of marital assets: many people in Virginia are shocked when they find out that, even though they've kept separately-titled bank accounts, if they have been depositing post-marital earnings into such an account, the nature of that account has changed from "separate" to "mixed" simply because of having said "I do": the source of funds (your employment) is the same; the account is the same; and the amount of the deposits are the same as before you said those important words, BUT the difference in the eyes of the law is that you have said those words, and now you are a married person, with a legal and moral duty to support one's spouse as far back in Virginia's history as there have been records.

Division of a two-income household is often no more simple than division of a one-income household into two separate dwellings: this is NOT the time to get greedy, because (again) it will simply run up attorney's fees for both of you.

BUT you can save money by sitting down and figuring out what are marital assets and debts, and how to fairly divide them. You can create a written agreement known as an "MPSA" (Marital Property, Separation, (and if applicable) Child Custody/Visitation Agreement") but please do not presume that what is available out there on line is going to meet your particular needs. Also, no matter how well educated you are, how gifted with writing skills, there is not at present a quality on-line MPSA form available of which I am aware (if there is, please do direct me to it, because I'm all about trying to save money). IF you and your spouse can agree on the 'big' issues, then take that list of agreements to an attorney of your choice.

SHOP AROUND- don't presume that all attorneys charge the same for the creation of the "MPSA" : also don't presume that just because you can't agree on everything, that that is bad: go ahead and get down in writing what you CAN agree to, and then you can litigate the remaining issue(s).

The divorce issues that you need to determine if you and your spouse can settle upon are:

1) division of marital assets (physical things like dishes and furniture)

2) division of marital funds (bank accounts, savings accounts, Certificates of Deposit, stocks and bonds, etc)

3) division of marital debt (both secured AND unsecured)

4) division of future assets such as retirement funds, pensions, annuities, etc.

5) (If there are children) Children's Legal Custody and Physical Custody.

6) (If there are children) Child support (which is dependent upon the last issue)

7) Spousal support.

There is NO hard-and-fast rule in Virginia as to division of marital assets, except that our divorce Court (known as the Circuit Court where you live) is ordered to practice "equity"- this comes down to a 'fairness' analysis based on a number of statutory factors which are contained in Section 20-107.3 of the 1950 Code of Virginia, as amended. These statutory factors focus on the contributions (both positive and negative- yes, anyone else would call them 'detrimental behaviors' but...) each party has made to the marriage, its assets, its debts, and the day-to-day joys and burdens of living. These 'contributions' can be both financial and practical, and there is NO ONE FACTOR which a Court must look at to determine whether there has been one spouse working harder in the marriage to keep it alive and functional.

There is also no hard-and-fast rule in Virginia as to spousal support (this is NOT the same as spousal support which may be awarded during litigation once suit is filed and before the actual trial): an award of spousal support must also be based on statutory criteria, this time contained in Section 20-107.1 of the 1950 Code of Virginia. (You can find both of these statutes at is in some counties a special mathematical calculation for pendente lite ("pen-den-tay lee-tay") (literally, 'during the litigation') spousal support, so you will want to find out if you live in a county which follows the 'Fairfax rule' or the "9th Circuit" rule, etc. But this is NOT the rule for post-divorce spousal support. There is also no guarantee that a spouse will receive life-time spousal support, no matter how long one has been married: the statutory factors are what must be followed by the Court in crafting an equitable award of spousal support.

Children's custody, support and visitation MAY be determined as a part of a divorce action, but Virginia is unusual in having two courts which can determine children's custody, visitation and support, and the second court is known as the "Juvenile & Domestic Relations Court". This Court has primary jurisdiction (the power to make legal determinations) over issues regarding children, but that primary jurisdiction may be subject to being 'overridden' by an action pending in Circuit Court for divorce which includes child custody, visitation and support issues as long as there is a pending hearing in the Circuit Court. Yes, it is confusing- even lawyers get it wrong, so don't be surprised if you think this is a complex system. There is nothing wrong in having the custody/visitation/child support issues decided by the Juvenile & Domestic Relations Court, and often such a division of issues between two courts helps the level of antagonism to decrease in one or the other. The biggest issue with managing the custody/visitation and child support issues in Juvenile Court is that, after that Court has made its decision, each party has an automatic right to file an 'appeal' to the Circuit Court and then retry the entire case all over again as though the Juvenile Court's trial had never happened. This is known as the right to a trial "de novo" ("day noh voh") and it means sometimes that the spouse who has more money to pay for the second-go-round can basically use the Juvenile Court hearing as a 'dress rehearsal' and then have a potentially different outcome at the Circuit Court level. Another issue with trying custody at the Juvenile Court level (which is often referred to as the 'lower' court) is that they cannot have three-day trials as one can request in Circuit Court: quite often, a custody trial is limited to a few hours, or at most one day , at the Juvenile Court level, and if you have a large number of witnesses, or a highly complex history in the case, you must choose to limit which witnesses you call in Juvenile Court.

Just as one would not attempt brain surgery on oneself, it is a foolish man (as Abraham Lincoln said) who represents himself as counsel. Using a Virginia-licensed attprney to create your Marital and Property Settlement Agreement is simply good sense: there's a reason that we have to go through three years of law school, because (with all due respect to astrophysicists) this is like rocket-science, as it is a highly complex field for which you need a knowledgeable and steady guide to get you through the potential 'minefield' of issues.

One further point- if you are planning to proceed on a 'scorched earth' type of divorce, you're likely to end up losing if your spouse hires competent counsel. Save the anger for a therapist's couch, close this chapter of your life, and start the next one without exhausting the family fortunes because you think the Court will punish your spouse: it won't except in the most unusual of circumstances.

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