Ryan E. Thum, Esq.
R.E. Thum, PLC
6465 College Park Square, Suite 310
Virginia Beach, VA 23464
757-818-8293
757-222-0477 (Fax)
R.E. Thum, PLC
6465 College Park Square, Suite 310
Virginia Beach, VA 23464
757-818-8293
757-222-0477 (Fax)
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.
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.
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.
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.
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.
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.
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.
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.