Many parents confronted with a custody order which they do not like are confronted with the reality of enduring the arrangement until they can show a material change in circumstances. The question I routinely get asked is, “what does that even mean?” In true lawyer fashion, the answer is always, “It depends.” The reality is the best assessment of your situation is to schedule a time to speak with an attorney who has the experience and skills necessary to fully assess your situation to help you develop a plan. In the meantime, consider the following to be a crash course in the initial hurdle in modifying an existing custody order.

First, it is important to understand custody orders can only be changed after a material change of circumstances justifying the modification being sought. This is to prevent the court from having to resolve the same dispute over and over. For example, if one parent is granted primary physical custody because the other parent moved away then in subsequent cases the previous move is not relevant to the new case. Therefore, the parent who was granted custody would not be able to use the fact the other parent moved in subsequent cases. This is because the law considers that issue resolved by the prior order. This is a rule commonly described as an inability to “go behind” the last order to use those arrows in your new case.

A material change of circumstance is any change in circumstances which alters the justification for the ordered parenting arrangement to such an extent the arrangements need to reevaluated to ensure the minor child’s best interests are being promoted. This definition could be interpreted so broadly any change could satisfy the rule and so narrowly that almost nothing will satisfy it. One factor which will almost always create a material change is a significant passage of time. It seems self-evident that arrangements for a two-year-old will not work for a ten-year-old. The reaching of school age, the extra-curricular activities and interests, developmental needs are all likely material changes which would have occurred during those eight years. There may also be material changes which occur on a far shorter timeframe. For example, if the other parent moves from Virginia Beach to Ahoskie, NC or even Chesapeake, then you will likely have a material change due to the additional transportation required. Additionally, if there has been a change in the other parent’s life which now limits their ability to fully exercise their time or there is a concern which was not present when the initial parenting arrangement was made, then you could likely have a material change allowing you to seek a modification of the parenting arrangements.   When evaluating a possible material change of circumstance, it is difficult to quantify a clean rule of thumb which can be provided to a client to measure exactly when a material change has occurred. Although, it is my goal as a skilled practitioner to ensure my clients understand the field upon which is battle will be resolved so they can understand and evaluate these developments as the occur so schedule a time to speak so you can get a leg up on the next round.

Feel free to call me at 757-818-8293 or click on our menu for a consultation.

10 Truths About Divorce in Virginia

There are few areas of the law which are as polarizing as family law especially when dealing with a contested divorce. Divorce is life altering, no doubt about it, but it does not have to be the cataclysmic event it is often portrayed in the media. To limit the negative consequences of divorce, it is important to keep these ten truths in mind.

1. It takes 2 to tango, but only 1 to divorce.

In Virginia, a spouse is entitled to a divorce after six or twelve months of separation depending on the particular circumstances of the marriage (minor children or not, Separation Agreement or not, etc.). Once the applicable time of separation has passed a divorce is going to occur. Fighting in court to win the love of your estranged spouse is a bad decision and will only lead to further alienation of their affection and your money. Being forced into a divorce when you want to salvage your marriage is traumatic, but denial of this reality will only exacerbates the situation.  

2. There are no winners in divorce.

The emotional and economic effect of ending a marriage through divorce precludes there being a “winner” in any sense of the word. Everybody loses. There may be a “victory” sprinkled throughout the case regarding various legal or procedural issues. For example, you may end up with the T.V. you wanted, the vehicle you worked hard for, the business you started or the support you demanded, but in the calm after the storm, these “victories” will not feel like victories at all. Divorce, at its essence, is a game of mitigation with very few opportunities for lasting victories. Focus on securing your future rather than securing a victory.    

3. Your neighbor’s divorce doesn’t have to be yours.

We have all heard the horror stories. It seems everyone who has gone through a bad divorce wants everyone to know about it. Their horror story does not have to be your story. Ask yourself when you’re listening to them, “Do I want this person to be the source of the advice I am going to use to re-order every aspect of my life?” After hearing the story of their spectacular failure which is often self-inflicted, the answer should be “no.” The best advice anyone can give you is to talk to a professional, at the outset, so you can educate yourself on the realities of your situation and develop a reasonable plan. Also, do not sign any document until you are 100% informed about the law and the reality of your situation because getting out of a signed Marital/Separation Agreement is virtually impossible.    

4. Property: It's either marital, separate or hybrid.

By definition, a contested divorce in Virginia is any divorce action filed without an accompanying Separation Agreement, even if the divorce is a result of a “No Fault” / “Irreconcilable Differences” separation. To help calibrate your demands, desires, and understanding of the possible outcomes in order to avoid a draining divorce trial, you need to understand how a court will likely divide your property. Property is defined in one of three ways: Marital, Separate, or Hybrid. These simple terms are deceptively complicated. Generally, marital property is everything acquired after the date of marriage until the date of separation. Separate property is presumed to be everything owned prior to the marriage, acquired after spouses separate, or given to one spouse during the marriage from an individual other than their spouse (i.e. an inheritance from a parent). Hybrid property is a combination of both (i.e. a house owned by one spouse before the marriage but paid for during the marriage). The focus should be to come up with a fair division of the marital property with an toward accounting for the marital share of hybrid property. Refusing to reach a deal until you get your “fair share” of your spouse’s separate property or refusing to equitably divide marital property will be counter-productive.  

5. Judges cannot make your spouse be sorry.

If your goal is to make your spouse apologize to you or acknowledge he or she is the reason for the divorce, then you need to accept this will never happen. Your goals should be based upon what is the likely result in a courtroom, and a Judge cannot order someone to become a different person. The Judge sees divorce as the dissolution of a partnership, much like a business, with the occasional child custody or support component mixed in. You must focus on making the smart moves in your divorce, not the emotional ones. The emotional toll cannot be ignored but must not overpower your decision making process. Otherwise, you will invariably make emotional decisions which will likely be mistakes. At the end of the day, understand the comfort you seek is found in the realization whatever problems your spouse has are now someone else’s problems to endure.  

6. If you have kids, they know more than you think.

If you do not have children, skip to #7. If you do have children, read this very carefully. They know more than you think and/or want. Kids are amazing. They are resilient. They are a combination, for better or worse, of their parents. They love their parents instinctively, and they always know when something is amiss. They may not know the reasons, implications, impact, or solutions for the divorce, but they know something is different.  They can sense the tension between their parents. They internalize the conflict because they do not know what to do or how to make both of their parents happy. This is not to say there aren’t times to fight for the best interests of the children because a review of my desk has some profound examples of the right time to fight. The point is, do not fool yourself when it comes to the kids because they know more than you want and that should never be forgotten. As parents, you and your estranged spouse should continue to work together for them and accept the other parent is as much a part of their story as you are.   

7. Ones don’t marry tens.

People often marry someone who has similar interests, similar up-bringing, similar life experiences, similar goals, similar beliefs, so it should not come as a surprise they often marry someone with similar short-comings. One of the more difficult paradoxes to get a client to understand is the worst habit/trait about their spouse also is reflective of them. For example, when you want to prove the allegation your spouse has always been a lying thief; know you are also proving you’ve always allowed your spouse to be a lying thief as long as it benefitted you. Obviously, in life there are no absolutes but this is a pretty good rule of thumb and trust Judges know it all too well.

3. There is going to be a future.

It is hard to look past any calamity to the smooth sailing just beyond. This is natural, but do not fall prey to a self-fulfilling prophecy. Negative thoughts and energy will breed more negativity. For the sake of your health and sanity, which will help you make the best decisions, you need to acknowledge the sun will rise in the East tomorrow and this too shall pass. The goal is to achieve the best result in a bad situation with a focus on maintaining a positive return on your investment. Your next chapter depends on it.  

9. Always Be Closing.

If you still want to fight to keep your spouse in the marriage, then you need to re-read #1. If you still want to win, then you need to re-read #2. If you still want to make your spouse apologize for the divorce, then you need to re-read #5. If you understand when it relates to the property that divorce is essentially a business negotiation, then always be closing. Make decisions designed to resolve issues rather than create them. Make calculated concessions to achieve your goals. You will have far more leverage and more possible outcomes outside of the courtroom. You need to work to make the tough, rational decisions to maximize your outcome and your future. If you do not, the Judge will resolve the case in a way that is likely to make everyone unhappy, and it will not be on the terms you would have agreed to.

   10. The majority of cases should settle.

Anyone who has experience in Family Law will be able to identify parameters within which these cases are going to be resolved. This should provide the framework in which a deal can be reached. At the outset of the relationship with clients this framework is identified. It is then up to the client to acknowledge these truths and work accordingly. The cost of litigation can be staggering and a source of great frustration. Add to it the fact the general outcome is typically identified early on as well as the other truths mentioned above, and you can see why the majority of cases should settle. The question always is, whether the parties are able to acknowledge this reality.

Divorce, invariably, will affect every aspect of your life. As in life, though, there is always hope for the future. If you take these ten truths to heart, you will be on the right path to create a better tomorrow and to ensure that when the sun rises you will be ready for the next chapter of your life.

If you would like to discuss your divorce, your options or even help in planning for a potential divorce please give me a call at 757-818-8293.

A contested divorce can be one of the most difficult things a person goes through in their life because no one gets married to get divorced. There are any number of reasons leading to the breakdown of a marriage and it is rarely just one person's fault. There will be a lot of emotions swirling around which will create a difficult environment to make critical decisions. To help make the best decisions you can, it is important to gather clear and accurate information so you can see the dynamic forces in play.

When we talk about a contested divorce in Virginia we are really talking about a divorce without an agreement which settles all the issues the judge would have to decide.  There is an entire section on this page devoted to the difference between uncontested versus contested divorces if you would like to study up on this distinction.

After over 25 years of experience as an attorney, I have come to see many, many contested divorces.  As a result, I am able to handle variables as they may appear in your case. I have been recognized for my skill in handling contested divorces in Virginia. My skill and experience will help navigate you through the contested divorce process.  Please do not simply take my word for it, feel to read our Reviews by our clients to learn more about us.

What is a Contested Divorce in Virginia?

A contested divorce in Virginia is one where the Court has to decide how to divide the property, allocate debts, determine the appropriate parenting schedule, and resolve any other issue arising from the marriage. By this I mean, if you are not able to reach a settlement prior to filing in court then you will have a contested divorce requiring the Court to make the decision for you. There can be a contested divorce dealing with only a few issues (ex., equity in the marital residence and allocation of debts) or all of the issues.  The judge will make the decision after the trial where the evidence can be presented and each side has a chance to argue why the evidence supports their position.

Uncontested versus Contested Divorce in Virginia?

There are only two paths to get a divorces - contested and uncontested.  Here is the difference - a Separation Agreement or Property Settlement Agreement which settles all the issues makes the divorce uncontested.  In a nutshell, a Separation Agreement is a document that the divorcing parties create and sign to resolve all of the issues in their divorce. This is not to say one party agrees they are the reason for the divorce or acknowledge their shortcomings, rather the terms resolve the legal issues between them.  Think of it as a contract to end the marriage which handles everything from real estate to outstanding bills to support as well as custody and visitation. I will talk later about Separation Agreements in another post.

An uncontested divorce is one where the parties have entered into an Agreement so there is nothing left for the Court to decide.  At the final divorce hearing, the Judge simply enters the Final Divorce Decree and incorporates the terms of the Agreement into the Order.  It is an easy day.  This is the best route for most people to go because it is faster, cheaper and does not leave the decision to a stranger who does not know anything about you and your family other than the evidence at trial.

A contested divorce means there is no Agreement.  This is one where the Court has to decide everything based upon the law and the evidence allowed in at the trial.  If you can avoid this path, then I strongly recommend you do. There are some blogs on this site which can help you focus on the important things and develop a way to compromise on the others. Focusing on how to compromise is good because it allows you to remain in control. The contested divorce process takes control away from you and gives it to the Court.  Remember, the Court does not get to hear everything because there are rules of evidence and procedure limiting what you get to present as well as what the Court can consider.  Also, the other side is trying to put their best foot forward too so they will be presenting the rest of the story which will likely include information which is not good for you. Therefore, it is critical for your success on this path to have someone who can guide with their experience and judgment while also being skilled in fighting for you in the courtroom.

If you file a contested divorce then you can still be able to settle the case to create an uncontested scenario. It is still technically contested but the settlement terms could be confirmed in an agreement or simply read into the court record allowing for the Final Decree to reflect the agreed terms.  There will still be some procedural hoops to jump through to get to goal of a final divorce but it will likely be far more efficient than fighting all the way.

The opposite is true to, you can have an uncontested divorce becoming contested.  Even though there is an Agreement, there are some things that are never "final" in the eyes of Virginia law.  Custody, visitation and child support are the main ones.  These are never permanent because the Court is always looking out for the best interests of the child.  What was good in 2017 may not be good in 2023.  Additionally, child support belongs to the child so even if the parties agree on Monday to a support amount they can go back to Court on Friday depending on whether certain factors have been met.  Again, a topic for another post.

As Virginia divorce attorneys we have run the gamut of the different types of divorce.  As always, this is not designed to be specific to your case as each case is different and should be treated as such. The goal here was to get some general information to you so you could start to see the issues and options before you. This is NOT legal advice but something to consider when you speak with a divorce lawyer or family law lawyer.  It is my belief that providing as much information as possible to our clients before the come in is always the best because a better educated client means that he or she can help us help them.

What Happens in a Contested Divorce in Virginia?

A contested divorce in Virginia is a process where married persons are divorcing and cannot agree on how to settle the various legal issues involved in the process.  As a result, the Court (a Judge) has to decide for them.  To get to that phase, which is at the very end, the parties have to go through the contested divorce process.

The contested divorce process starts with filing of a Complaint for divorce.  The other side files paperwork responding to the Complaint and, if necessary, a response to that is also filed.  That often is the easy part.  From here there discovery is propounded which consists of Interrogatories, Requests for Production, Requests for Admission, perhaps, depositions and / or subpoenas to third parties. These subpoenas are used to obtain materials, documents, videos, etc. from other people / businesses. Along the way, there are often various hearings necessary to address motions filed by either side.  These Motions are matters that the Court needs to decide whether it is temporary or an issue for trial. The most common divorce motion would be the a Pendente Lite motion which is described in another post.

The last thing that happens, normally, is the final divorce trial.  This trial is not quite like you see on television or in the movies. There is some drama, for sure, but it is typically anti-climatic given the pressure, emotions and significance of the issues being addressed. The trial will be in front of a judge with witnesses testifying, evidence being introduced, objections being made and argument.  The Judge then makes the final determination of whatever issues are left unresolved.

That's the typical path to getting a contested divorce in Virginia.  While it is an oversimplification of the process, the goal was to provide you a good outline.  As always, every case is different so I can't post a "one size fits all" explanation of what happens in each and every case.  These are general overviews and to find out about your specific situation I strongly recommend that you consult with a competent contested divorce attorney.

What are the Stages in a Contested Divorce in Virginia?

The stages in a contested divorce in Virginia are pretty straightforward.  That does not mean that they are necessarily quick, fast or inexpensive.  I will not mislead you - it can be a lengthy process requiring effort on your part as well your attorney. 

The first stage is focuses on the initial filing.  A contested divorce action is started in Virginia when a Complaint for Divorce is filed.  This is the document that tells the court of the results you are asking for and the reasons you believe you should be awarded that relief.   The plaintiff is the person who filed the Complaint first. There are minimal benefits to filing first but there are some. The Complaint is served upon the spouse (now known as the defendant) who then has 21 days after being served to file a response.  The Answer is typically a document filed addressing the allegations made in the Complaint, although there are other types of responses allowed by the rules.  Typically, the Defendant will also file a Counterclaim which is the Defendant's version of a Complaint which lays out there version of the events and details the results they believe are fair. The Plaintiff will have 21 days after being served to respond to the counterclaim.

The next stage of the contested divorce process in Virginia is known as Pretrial Litigation.  This is the time when the parties to the divorce exchange and gather information through the discovery process. The discovery process can include filing written questions to be answered by the other side, requests for documents either directly from the other side or through third parties, as well as depositions.  There can also be other motions or hearings filed during this time. 

During Pretrial Litigation there can be hearings to decide some pressing issues during the divorce process which tend to need to be addressed sooner than later. These issues typically involve setting up the parenting schedule, allocating various debts and / or support matters. This is called a Pendente Lite hearing (pronounced "pen-dent-ay lee-tay").  Think of this as a band aid to address pressing issues such as custody, visitation, bills, support, etc.

The final stage of Virginia's contested divorce process is the trial.  This is where the information gathered during the case is put through the rules of  evidence filter so the Court can receive the information needed to make the final decisions regarding your divorce.  In the overwhelming majority of circumstances this is the final stage in the divorce, but there is the ability to appeal beyond your local circuit court.

That's it.  That's all.  Admittedly this is an oversimplification of the divorce process but hopefully it gives you an understanding of the basics of the process.

How Long Does a Contested Divorce Take in Virginia?

Another common question we routinely receive is how long will a contested divorce take in Virginia.  Unfortunately this is another one of those questions where the answer is - it depends.  As I stated in the another section on this page, there are 3 stages in the Virginia contested divorce process.  This process can be relatively fast or it can be extremely long.  The biggest hurdle to giving a deadline are the schedules of the Court and the Judicial Settlement Conference Judge.  The variables in this process are numerous making an accurate prediction difficult. The delays created by Covid shutdowns are also a complicating factor, although these seem to be reducing. The law requires folks with minor children to be separated for at least a year before the divorce can be granted. This is the same requirement for folks who do not have minor children and have not been able to settle their case. The time can be reduced to six months if you have no minor children and have reached a settlement agreement.  So I really cannot give a definitive time as to how long your or any contested divorce will take in Virginia as there are just too many variables.

How Much Does a Contested Divorce Cost in Virginia?

We often get asked the cost for a contested divorce in Virginia.  It is a fair question and one that needs to be addressed.  It should be one of the determining factors of whom you hire, but not the only factor. You will need to budget, plan and figure out how to pay lawyer's fees and live during the divorce process. A skilled and experienced attorney will understand the financial impact on clients, which should help the attorney work with the clients to prioritize the issues to help guide where to put resources. Divorce is an emotional process and some attorneys can use this to create conflict, increase the expense which benefits their bottom line. We do not take that approach because the goal is to help focus the client on reasonable compromises so we can identify where the conflict is really rooted. If the other side is being unreasonable, then applying additional expenses to fight for what is fair is justified. If the other side is being reasonable, then the focus should be on working in good faith to find a mutually beneficial solution. Evaluating the expense of a contested divorce should also include considering the costs in time from your life, the additional pressure and stress contested litigation creates as well as other considerations beyond the financial. A seasoned divorce attorney should already know this reality and be skilled at helping their clients fold these factors into the decision making process.  

The short answer is no one knows how much your contested divorce will cost.  No one.  There are a variety of factors to consider - the number of issues, the amount of hearings that occur, the cost of discovery and exchanging or obtaining information, the problems or issues that arise, and even the difficulty of the lawyer on the other side.  If someone tells you the total cost of your divorce then odds are that person is telling you what you want to hear to get your money. 

If you have any questions, please feel free to send me at .757-818-8293.

This Post was co-authored with Brian A. Thomasson, Esq., of Brian A. Thomasson, P.L.C. Here is a link to his website or you can call his office at 757-454-2110.

The question is premised upon a gender bias which simply does not exist in the law. The proper question is whether my spouse gets half of everything in divorce in Virginia. Divorce in Virginia is equal opportunity disappointment so gender does not matter. Regardless, this is a common question and I will answer it as best that I can. Although, please keep in mind, as always, this is not specific legal advice but rather general information to help you develop a better understanding of the storm on your horizon. To talk about your situation I would strongly encourage you to speak with competent legal counsel as each situation is different. You don’t have to talk with us just because you read our Blog. Of course we would love to speak with you but we understand that there are thousands of lawyers. I would just ask that you look at their qualifications to make sure that the attorney knows what he/she is talking about and is not just dabbling in family law. If you would like a consultation with us please feel free to call or text us at 757-454-2110. If you mention Blog post 22 we will waive the consultation fee.

So let’s talk for a moment about the law in Virginia regarding division of assets. In the United States, the laws break down, broadly speaking, into two types of division: community property and equitable distribution. Community property means, generally, that anything that comes into the marriage become marital property and, as a result, it gets divided equally between the spouses. Let me give you A COMPLETE HYPOTHETICAL. Bill Gates – started Microsoft – gets married tomorrow without a Prenup. At the time of the marriage he is worth $1 billion. Mrs. Gates and him enjoy marital bliss for 10 years. During those years, his wealth goes from $1 billion to $101 billion. When they get divorced in a community property state, she would likely be entitled to one-half of the $100 billion wealth accumulation during the marriage. Doesn’t seem fair? Again, the premise of the question is off which can cause confusion. It does not matter if it is fair, in community property states it is the law. We understand he put the work in before the marriage and the fact Microsoft was a force of nature prior to their marriage. Community property states favor efficient division rather than a “fair” or, another word would be, equitable division which typically requires more litigation to flesh out the facts to be able to determine what would be fair.

This leads to good and bad news. The good news is Virginia is not a community property state and requires the time to flesh out evidence based upon specific factors set out in the law. The bad news is Virginia is an equitable distribution state which requires the effort to find the evidence to present the information to entice the judge to adopt your perspective of what is fair. This is the bad news because of the expense in time, money, and peace of mind this process typically requires.

What that means is that you get out of it is what you put into it. Now that can be a bit tricky. Some people are in the traditional paradigm of one spouse was the stay-at-home parent and one worked to pay the bills. The initial fear is because the other spouse made all the money then they get all of the property. As we mentioned above, equitable distribution is a process where all factors are considered and who made the money to buy the property is but one of those factors. Another factor considers the non-monetary benefits provided to the marital unit. The typical nonmonetary benefits, in this traditional paradigm, are maintain and running the home especially when children are involved. The meals, laundry, scheduling, and other tasks which take up the day of running a household creates the marital equity in the wealth of the family regardless of who actually made the money. Although, there is another factor which focuses on the monetary and nonmonetary contributions to accumulation and maintenance of the property.

There are other factors which focus on aspects of the marriage beyond how the property was acquired. The age, health and education of the spouses is required to be considered. This is because it helps project the likelihood of how each person is going to be able to set up their next chapter. The reason for the divorce and whether there was any marital fault which negatively impacted the financial well-being or other aspect of the martial wealth. The nature of the property, for example are we talking about a bank account or real estate with equity, and whether there will be tax consequences which would undermine the equitable division of the property. This liquid asset (bank account) versus nonliquid asset (real estate) is a significant factor to consider because one spouse may do better with cash rather than having to deal with maintaining real estate. This is because real estate typically has liens and debts attached to them which leads us to another factor. The division of debts, mortgages included, must be considered because one spouse maybe in a better position to manage the marital debts versus the other, even if this is not the person who caused the debts to be incurred.

Virginia’s equitable distribution process is designed to take each marriage on their individual characteristics, good and bad, to create the most equitable division possible. Of course, this requires a significant amount of work which is expensive and tends to create more conflict along way. Therefore, it is best to be reasonable in evaluating the big picture and not lose sight of the ultimate goal. This goal being creating a fair and equitable division for both parties. This requires acknowledging the strengths and weaknesses of your respective position as well as understand the other perspective. Our experience has allowed us to develop the expertise necessary to be able to help folks evaluate their situation to assist with beginning to develop a plan to fully engage in this process.

If you have questions or would like to schedule a consultation, feel free to reach me at https://www.rethumlaw.com/ or at 757-818-8293.