Each divorce is unique. However, in all divorces the goal is to end the marriage and resolve one or more of the following issues: child custody, equitable distribution of property, and support.
Starting the Process.
A divorce case starts informally when a couple agrees to explore divorce and separates. They may agree on certain issues such as custody and support arrangements on a temporary basis, or they may disagree, in which case one party may file in the local circuit court for a divorce, or have an attorney negotiate a compromise on such issues.
Litigation.
In Virginia, a divorce action begins when one party files a Complaint, or formal request for divorce, with the circuit court in their county. Documents filed with the court are collectively called “pleadings.†The other party may respond by filing an answer to that Complaint, specifically affirming or denying each statement or “allegation.†Sometimes, the responding party may file his or her own request for divorce in a pleading called a Counterclaim. The party filing the first pleading is called the Plaintiff, and the responding party is called the Defendant.
Grounds for Divorce.
A party may file for a divorce based on fault grounds (such as adultery or desertion) or no-fault grounds (meaning a divorce granted merely because a couple has separated for the requisite amount of time). The decision to file on fault or no-fault grounds is complex. For a further discussion of fault grounds, please see our FAQs.
Resolving Interim Issues.
Once the case is filed, certain temporary issues such as custody or support may be litigated or negotiated. Other times, the parties may agree on such matters and may not require the court’s assistance in resolving those issues pending trial.
The Discovery Process.
Every divorce involves information-gathering, which can be accomplished informally by a mutual exchange of financial information, or more formally by interrogatories (written questions that a party must answer under oath), requests for production of documents, depositions, requests for admissions, and other discovery techniques. “Discovery†refers to the formal process of obtaining information from each litigant.
Litigation Procedure and Timeframe.
Once the discovery process is underway or complete, the attorneys for each party will set dates for a trial on the issues of support, custody and property distribution. Some localities try these issues in one hearing; others try custody issues separately from support and property issues. The typical time between the initial filing for divorce and trial on the issues is approximately one year. However, the court may extend or shorten the time period depending on the exigencies of each case and the resources of the particular court.
Settlement and/or Trial.
At any point in the litigation, the parties may agree on some or all of the issues noted above. If they do agree, they enter a “Marital Settlement Agreement†(a private contract between the parties) or a consent court order that resolves the issue. If a couple is able to resolve the outstanding issues by means of an agreement or consent order, obtaining the divorce is normally a straightforward administrative process. If the couple cannot resolve the issues, the court will do so at trial.
It is important to remember that no lawyer, no matter how skilled, can advise you definitively as to the outcome at trial. Many clients want their lawyers to venture a guess as to the likely outcome: what are my chances? A good lawyer will provide you with a range of outcomes and candidly admit that the outcome is dependant on variables over which you have little or no control, such as the individual judge. For this reason, your lawyer must be committed to exploring settlement options even if the case is being litigated.
Appeal.
After the trial, each party may appeal the decision of the trial court to the Virginia Court of Appeals. If a party wins the appeal, the case is normally returned to the trial court judge rendering the initial decision with instructions from the Court of Appeals regarding a rehearing of certain aspects of the case.
Modification.
After your divorce is complete, certain court decisions or agreements between the parties may require modifications based upon a change in circumstances. For example, a party may significantly increase his or her income rendering the former support award unfair or outdated. The other party may therefore seek to have the award changed based upon such circumstances. Generally speaking, issues related to child custody or support may be modified in the best interests of a child regardless of whether the court or the parties resolved such issues. Other matters may not be modified, depending on the particular matter or the way it was resolved.
Enforcement.
Unfortunately, some clients deal with former spouses or parents who fail to fulfill their agreed-upon or court-ordered obligations. In such situations, it may be necessary to bring a court action for enforcement of court orders or agreements.
CHOOSING YOUR ATTORNEY
Your relationship with your family law attorney is important. It is essential that you find someone with whom you are comfortable on a personal and professional level. While an attorney may be noted in his or her field, you might not feel personally comfortable with that lawyer’s style or advice. Other times, you may like the attorney personally, but find his or her professional style or skills lacking. You must try to find the right balance of professional competence and personal comfort.
You have a right to expect certain things from your lawyer:
- Your telephone calls should be returned promptly.
- The billing arrangements should be explained clearly.
- Your attorney should listen to your concerns and treat them with respect, even if he or she disagrees with your position.
- Your lawyer and your lawyer's staff should be professional and courteous.
- You should receive copies of important papers, pleadings, and correspondence.
If one or more of the above elements is missing from your attorney-client relationship, you have a right to expect the issue to be remedied, or else seek other counsel.
You must also consider your attorney’s billing rate. Our firm strives to keep our rates reasonable and in line with prevailing community standards. However, the divorce process can become very expensive, no matter what your attorney charges hourly. You can keep your costs down by doing the following:
- Writing down your questions in advance and calling or writing your lawyer only when you have several matters to discuss or in an emergency.
- Helping your lawyer with the discovery process by promptly providing copies of your financial documents.
- Trying to keep your initial, emotional responses to a minimum, and making decisions based on long-term goals.
- Using litigation as a last resort, and only after other options for resolution have been explored and attempted.