Archive for the ‘Divorce’ Category

What is a ‘no fault’ divorce?

Sunday, January 6th, 2013

People sometimes get the terms ‘uncontested’ and ‘no fault’ confused when they talk about divorce.

An uncontested divorce is one in which the parties agree to all of the issues.  I wrote a blog post that goes into more detail here.

A ‘no fault’ divorce is one in which there are no other legal grounds for divorce.  In Virginia, this means that there has been no adultery, or cruelty (or those grounds cannot be proved).

This doesn’t mean that both spouses are angels and that the husband or wife has never done anything that has made the other spouse unhappy or angry or feeling that they could not stay married.  It just means that there are no sufficient and provable legal grounds for the divorce.

In other states it might be called ‘irreconcilable differences’.  I had one client tell me that there were irreconcilable differences in their marriage because he wanted a divorce and his wife didn’t.

In Virginia, you can file for a no fault divorce if you have been separated for a period of one year.  If there are no minor children and there is a written and signed separation agreement, this time frame can be reduced to six months.

The spouses can (and often do) still argue over the division of property, the division of debts, the payment of spousal support, issues regarding the children (custody, visitation and support) so a ‘no fault’ divorce is often not a simple matter at all.  Some no fault divorce cases can go on for years while the spouses fight over different issues.  As you can see, this is very different from an uncontested divorce!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

What Is An ‘Uncontested Divorce’?

Wednesday, December 26th, 2012

I often have potential clients come into my office saying that they want an ‘uncontested divorce’, that quickly evolves into a ‘contested divorce’ instead.  Most of the time that is because the client really doesn’t understand what is meant by an ‘uncontested divorce’.

It is more than just an agreement that the marriage should be ended.

At least one of the Circuit Courts in this area has detailed exactly what they consider to be an ‘Uncontested Divorce’:

(a) All of the issues regarding the division of property have been agreed to by the parties; and

(b) The grounds are separation for the statutory period (no-fault); and

(c) Child support, spousal support, custody, and/or visitation are not requested; or if they are requested; there is a written and signed agreement between the spouses.

Of course, there is often no signed agreement when you first come to the attorney’s office for a consultation, but in order to have a true uncontested divorce, you need to have full agreement between the husband and wife about the important aspects of the property division and matters concerning the children.

I suggest that the husband and wife should write down what they understand to be in the agreement, so both parties have a copy of what is going to be put in the final agreement drafted by the attorney.  Once the details are given to the attorney, he or she can put those details into the proper form.

If any of the above are not true, then you probably do not have an uncontested divorce.  This does not necessarily mean that the divorce has to be contentious or that we can not quickly get to an agreement, but it will take at least a minimum of time and effort.

Usually, if the other spouse has retained an attorney for anything other than to just prepare or review some paperwork, the divorce is considered contested.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

What is a Collaborative Divorce?

Saturday, August 18th, 2012

I’ve recently been asked about ‘Collaborative Divorce’ and whether or not I think it’s a good idea.

First of all, I must admit that I am not a recognized member of any collaborative divorce organization.

I have read the information that compares the Collaborative Divorce process to the ‘regular’ divorce process, and if I didn’t know any better, I’d be scared of doing a regular divorce myself!

Let’s break it down a little.  According to Wikipedia, Collaboration is working together to achieve a goal.  In a divorce, the married couple, or at least one of them, has the goal of ending the marriage.  In a collaborative divorce, the parties, and often a team of professionals, work together to determine how the end of the marriage will be handled.

There can be some discussion with child therapists about the best way to discuss the topic with the children.  There can be some discussions with financial professionals about the best way to structure the finances now and after the divorce.  Apparently, many Collaborative Divorce groups have someone who is a ‘divorce coach’ that can help the parties to identify who should be involved and when.

And there will always be lawyers, because divorce is, after all, a legal function.

So the real question is, are there really only two totally opposite options?  Do I only have a choice of  (1) a divorce where the spouses can have meaningful discussions about how to resolve the marital property division with a professional staff to assist in those discussions or (2)  go to a trial in court and have the judge make the decision?  In other words, is a collaborative divorce the only way to avoid going to trial?  and do all non-collaborative divorces end up in front of a judge who make the decisions?

I can only speak from my own experience.

Sure there are attorneys who take every case to court and will work to get the last penny for their clients.  If that’s what the client wants, these are the best attorneys for their case.

There are also a lot of attorneys who aren’t members of a collaborative group that really want to help their clients end their marriage with the least amount of trauma.  This is the group I belong to.

If necessary, I can take a case to court and do the trial.  But I must admit that I don’t do that often.  Most of my divorce cases are handled in settlement talks with the spouses and their respective attorneys.  Sometimes we all get in a room together.  Sometimes we work separately and pass draft documents and questions back and forth.  And in a fair number of cases, I do the legal paperwork based on an agreement that has already been approved by both spouses.

Regardless of what you call the process, a divorce is an end to a marriage and things must be decided legally so that the spouses can go on with their lives as separate people and not as a couple.  If there are children, decisions must be made about who is going to take care of the children and make the day-to-day decisions.  Decisions must be made about whether any money is going to be paid for support and for how long.

I don’t necessarily advocate using a collaborative group.  But I don’t necessarily advocate ignoring them either.  Just like with everything else, I always think it’s a good idea to get three quotes or bids and compare the different options.

After all, it’s your life and you need to find the best way for you to go through this legal process.  I think the best way is the one that fits with your needs and personality.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Some Financial Effects of Divorce

Tuesday, May 1st, 2012

When two people are dating, they often decide to move in together for a number of reasons, and one of those reasons can be financial.  After all, why pay for two sets of living expenses (rent, electric, cable etc.) when you are spending all of your time together?  It is cheaper to combine expenses.

The opposite happens when people get divorced, but for some reason it seems to come as a surprise to people that they are not able to continue to maintain the same lifestyle that they had as a couple.

Often, the couple’s financial difficulties are one of the reasons they got into marital problems in the first place, and now that same combined income needs to pay for two separate households.

Everyone seems to understand that the ‘stuff’ to be divided at the time of a divorce includes the house, the cars, the televisions and the other tangible items.  What they often don’t understand is that debts are also considered marital ‘stuff’ that will be divided.  Debts are contracts made between parties where one side (the creditor) agrees to provide something (money) in exchange for the other side’s agreement to pay the creditor back, usually with interest.

Most of the time, the divorce will assign the debt to the person who signed this debt contract as the ‘responsible party’ for the debt.  For example, if Bob gets a credit card in his name alone, he is the ‘responsible party’ for that debt and he will probably be assigned that debt in the divorce.

If the debt is in both of their names, the divorce may assign the debt to one party, but the contract with the creditor has never been changed.  What this means is that the creditor can still file a lawsuit against both Husband and Wife to try to get repayment of the debt.

As an example, Bob and Carol were married when they applied for a credit card to cover the cost of furniture for their home and they both signed the credit card contract.  Now, Bob and Carol are divorced and that debt has been assigned by the divorce to Bob.  Bob does not make the payments on the credit card and the credit card company sues both Bob and his ex-wife Carol for repayment.  Carol will need to defend herself against that lawsuit in court so that the court can order that Carol is not to be held responsible for this particular debt.  Carol can do this herself, but she will probably hire an attorney to assist her.  If the divorce decree is worded correctly, Carol can then file suit against Bob to have him reimburse her for her legal fees.

There are also times when one or both of the parties files for protection under the Bankruptcy Code.  Again, a careful drafting of the divorce decree can help protect the other party from being held responsible for a debt that has been discharged by the other ex-spouse.

Divorce is an emotional and difficult process that can have immense and varied financial implications that should be discussed with an attorney who can help provide you the assistance and protection you need.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Could Kim Kardashian get divorced in Virginia?

Sunday, November 6th, 2011

The Kim Kardashian divorce news brings up a question that I hear often in Virginia.  You might be surprised at the number of calls I get from people who have been married less than a month and they now want to get a divorce.

It is easy to get married in Virginia.  Some states have a 3-day waiting period before you can get married.  Virginia has no waiting period at all, so if you are thinking about getting married and want to do it on a whim, Virginia might be the place to go for the wedding ceremony.

It is not so easy to get divorced in Virginia.

I think the shortest marriage that has shown up in my office wanting a divorce is from a couple who got into a fight at the reception and never spent even one night together as man and wife.

Unfortunately for most unhappily married couples, they must wait until they have been married for at least 6 months before they can file for divorce.  Of course, if there are provable grounds for divorce the divorce can be granted sooner, but for the ‘it was a mistake’ type of situation like that of Kim Kardashian, you need to be separated for at least 6 months after the wedding before you can even file for a divorce.

These types of situations are usually handled as an uncontested divorce and we can draft a Marital Settlement Agreement that will control the legal situation between the parties until the divorce can be granted, but the couple is still legally married until the judge signs the final decree.

So be sure before you get married!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.