Tag Archives: divorce

What Can I Cite as Grounds for Divorce?

couple filing for divorce

What Are the Grounds for Divorce in Virginia? | NOVAEstateLawyers.com

Whenever a couple files for divorce, they’re required to cite “legal grounds,” or the reason they want to dissolve their marriage. These grounds can be fault-based, where one or both parties has done something wrong, or no-fault, where the parties fulfill the requirement to remain separate and apart from each other for a required period of time set by statute (see more below).

Fault-based grounds for divorce in Virginia

If you believe your spouse is guilty of marital misconduct and have the appropriate proof to present to the court, you may be able to use their actions as grounds to file for divorce. Depending on your grounds, you may be granted a divorce from bed and board or a divorce for the bond of matrimony.

Grounds for a divorce from bed and board (partial divorce)

In Virginia, a divorce from bed and board (a mensa et thoro) legally separates you from your spouse. With sufficient proof, this type of divorce may be filed and granted immediately, but neither you nor your spouse may remarry. One year after you’ve received a divorce from bed and board, you can ask the court to merge this decree into an absolute divorce from the bond of matrimony (a vinculo matrimonii).

1. Willful desertion or abandonment

If your spouse has left the marital home and willfully deserted you and/or your family for at least one year, you can file for a fault-based divorce on these grounds. You’ll need to prove that your spouse intended to abandon you – in other words, separation by mutual consent or leaving because of spousal cruelty does not count as desertion. Whatever the details, present this information in your case to the court to cite desertion and/or abandonment.

2. Cruelty

If your spouse causes you reasonable fear of bodily harm, you can cite “cruelty” as grounds for a fault-based divorce. If you’ve been on the receiving end of threats or acts of physical violence, be sure to document these threats and acts so you can demonstrate to a judge that you feel unsafe in your marriage.

Grounds for a divorce from the bond of matrimony

A divorce from the bond of matrimony is absolute and final, and both spouses are free to remarry after the final order of divorce is granted. Here are the two fault-based grounds you may cite for this type of divorce:

2. Adultery, sodomy, or buggery

Extramarital sexual relations in the form of adultery, sodomy, or buggery (bestiality) can be cited as grounds for your divorce.

To get a divorce based on adultery, you will have to solidly demonstrate to the court that your spouse had or is having sexual relations with another person. Proving an affair can be difficult, so you’ll want to work with an attorney to build your case and gather sufficient evidence.

Keep in mind that divorce will not be granted on the grounds of adultery or sodomy if you continued to maintain a relationship with your spouse after learning about the affair. For instance, if you knew your partner was unfaithful and tried to “work things out” while still living or romantically interacting with your spouse, you can’t cite this misconduct for your fault-based divorce.

2. Conviction of a felony

If your spouse commits and is charged with a felony, you may cite their conviction as grounds for a fault-based divorce if they are sentenced to more than one year of confinement. To do so, you’ll need proof of your spouse’s conviction and sentence, and agree to not resume cohabitating with your spouse after their confinement.

No-fault divorce in Virginia

If you simply find yourself out-of-love and/or incompatible with your spouse and there’s been no marital misconduct, you may choose to file a no-fault divorce from the bond of matrimony, also called a separation divorce. In this case, the grounds for divorce are typically cited as “irreconcilable differences,” meaning no amount of therapy, counseling or effort from the parties can mend the relationship.

In Virginia, couples can file for this type of divorce if they have met the minimum separation requirements: You must have lived “separately and apart without any cohabitation” for one full year and one day (if you have minor children together) , or for a full six months and one day (if you have no minor children and a signed marital settlement agreement).

No-fault divorces are often easier because if you are able to work everything out in your settlement agreement — including the division of marital assets and debts, and child custody/visitation arrangements, if applicable — you may not have to appear before a judge. To make the process as smooth as possible, follow our tips for drafting your agreement with your spouse.

No matter how “done” you might feel with your marriage, it can be difficult and painful to close this chapter of your life. By fully understanding your options and determining your legal grounds for divorce, you can begin the separation process and start moving toward a new future.

Get help with your Virginia divorce

If you are seeking a divorce or need to draft a settlement agreement, we recommend consulting an experienced attorney to help you.

The Law Office of Patricia E. Tichenor has nearly two decades of experience helping Virginia residents with family law matters, including settlement agreements and divorce cases. Contact us to discuss your circumstances so we can help you take the first steps in your divorce process.

Common Divorce Questions You’ll Want to Ask Your Attorney

meeting with attorney

Common Divorce Questions to Ask Your Attorney | NOVAEstateLawyers.com

Marriages can sometimes end amicably, making divorce a relatively simple and clean process. However, many divorces can be painful, expensive, and complex.

Once you’ve agreed to divorce, you and your spouse will have to navigate the murky waters of settlement agreements, court documents, alimony/spousal support arrangements, and child custody/support, if you have minor children. To ensure you’re following the proper legal procedures – and that you have a positive and mutually beneficial outcome – you should seek the services of a qualified divorce attorney.

You can start this process by setting up an appointment with an experienced divorce lawyer in your local area. Your attorney will act as your guide and advocate, and the initial consultation is the best time for you to clear up any uncertainties or concerns you might have. Here are some common divorce questions you’ll want to ask when you meet with your attorney.

1. Are we eligible to file for divorce right now?

According to Virginia’s divorce laws, couples filing for a no-fault divorce must have been separated for 12 full months if they have minor children, or six full months, with no minor children and a signed settlement agreement. However, the rules and timelines are different if you are filing for an at-fault divorce on grounds such as adultery, cruelty, or desertion. Your attorney will be able to tell you how soon you can file for divorce.

2. Who will get custody of our children?

For couples with minor children, determining custody arrangements can be one of the messiest parts about divorce. If you and your spouse can’t reach an agreement on your own, a judge will have the task of deciding what’s in the best interest of your minor child(ren). Many factors are considered here, so you’ll want to ask your divorce attorney what your options are regarding custody, and what a judge will take into account. Your attorney can help you understand the most likely outcome given your unique situation, and can guide you in choosing which battles to fight and which to concede.

3. Do I have to pay (or will I receive) alimony/spousal support?

The amount of spousal support you may request (or will have to pay) is highly dependent on your individual circumstances. Your custody arrangements (if minor children are involved) and who earns the majority of income in your household can have an effect on your outcome. Ask your divorce attorney early on what you should expect to pay or receive, so you can plan your finances accordingly.

4. How do we split our assets?

If you and your spouse did not sign a prenuptial agreement, you may not know how to fairly split your assets in your impending divorce. Dividing marital property can be complicated, and if you and your spouse can’t reach an amicable, mutually beneficial agreement, you may need to bring this question before a judge. If there is a dispute over who should receive which assets, your attorney can help you better understand your chances of a favorable ruling.

5. What should I expect during my divorce hearing?

If you haven’t been through a divorce before, the idea of appearing before a judge to sort out your issues could be intimidating. Ask your divorce attorney what to expect in the preparation of a hearing, including what information you should have ready to present. Although no two cases are alike, your divorce lawyer should be able to provide you some idea of what will occur.

6. Do we really have to go to court?

A no-fault divorce can result in an amicable split without any divorce hearings in court. The first step in this process is drafting a marital settlement agreement. This document requires you and your spouse to decide how you will divide property, who gets primary custody, and the amount of spousal or child support to be paid, if any is needed. An experienced divorce attorney can help you craft this document and review it to ensure it’s fair for both parties.

Contact the Law Office of Patricia E. Tichenor for help with your divorce.

Whether you’re just beginning the separation process or you’re ready to file for divorce, the Law Office of Patricia E. Tichenor can help. We’ve spent nearly two decades helping Virginia residents with settlement agreements, divorce cases, and other family law matters. Contact us to discuss your situation and begin the divorce process.

Tips for Drafting Your Settlement Agreement

couples' hands with divorce settlement agreement between them

Divorce Settlement Agreement Tips | NOVAEstateLawyers.com

If you and your spouse have agreed to file for a no-fault divorce, you may be wondering where to begin, from a legal standpoint.

In the Commonwealth of Virginia, filing for this type of divorce requires you to be legally separated from your spouse for a minimum of one full year. However, if you have no minor children, you may file for divorce after six full months of separation, provided that you and your spouse have signed a valid settlement agreement.

What is a divorce settlement agreement?

A divorce settlement agreement, also known as a separation agreement, a marital settlement agreement, a separation and property settlement agreement, or a custody, support, and property agreement, is a legal document defining how you and your spouse plan to divide your assets and debts. It also outlines any specific terms you and your spouse mutually agree to abide by during and after your divorce, including spousal support (if applicable) and any custody, support, and visitation matters (if you have minor children together).

One key advantage to a settlement agreement is that you and your spouse can divorce on your own terms, without bringing any nasty details into the courtroom. In a no-fault, uncontested divorce case, a judge can simply review your agreement and incorporate its terms into your final order of divorce. It may also help speed along the already-lengthy divorce process by eliminating the need for multiple court appearances.

How to draft your settlement agreement

Even for the most amicable divorcing couples, it can be difficult and painful to draft your settlement agreement, as it forces you to confront the end of your marriage. Below, we provide a few tips to help you make the process smoother and easier.

1. Start your discussion about the agreement from a calm emotional place, in a neutral location.

If you and your spouse try to discuss the terms of your settlement agreement when you are emotionally charged, or if you’re in a place that feels uncomfortable (such as your former marital home), you may find it difficult to make much progress. Schedule a time and location with your soon-to-be ex – just like any other professional meeting – so you can both mentally prepare for the discussion ahead.

2. Get a good picture of your individual and joint assets.

Every bank account, credit card, loan, mortgage, lease payment, retirement account, property, vehicle, and valuable asset you own will need to be listed in your settlement agreement. Preparing a thorough list of these accounts and assets, including any that you own separately from your spouse, will make it easier to go through them and decide what to do with them moving forward.

3. Agree on your date of separation.

The date of separation listed in your agreement determines when you and your spouse can officially file for divorce. Your date of separation does not necessarily have to be the date you or your spouse moved out of your marital home – it can simply be the date you had a conversation in which you agreed to seek a divorce. However, if you are still under the same roof, be sure to specifically state in your agreement that you are living “separate and apart” (i.e., separate rooms and engaging in behaviors that suggest you are a couple).

4. Know what you want, but be prepared to compromise.

Drafting a settlement agreement is a negotiation. You do not have to sign any agreement that you feel is unfair, and you have a right to ask your spouse to consider different terms. However, understand that you will likely not get everything you want – and neither will your spouse. It’s important to know going into this discussion what you are willing to compromise on, and where you want to stand firm.

5. Consult an experienced attorney.

While it is possible to draft a settlement agreement without legal help, an experienced attorney understands the ins and outs of your home state’s laws regarding separation and divorce. Without consulting a family law professional, the language in your settlement agreement may inadvertently put you at a disadvantage when you begin your divorce proceedings.

To play it safe, we highly recommend hiring an attorney to help you draft your agreement. At a minimum, you should ask a legal professional review the one you and your spouse drafted before you notarize it.

The Law Office of Patricia E. Tichenor has nearly two decades of experience helping Virginia residents with their family law matters, including settlement agreements and divorce cases. Contact us to discuss your circumstances so we can help you take this important step in your separation.

Do I Really Need a Divorce Lawyer?

divorce dictionary entry with two rings

Do I Need a Divorce Lawyer? | NOVAEstateLawyers.com

Divorce can be one of the most stressful events in your life, from an emotional, financial, and legal standpoint. For this reason, if you need to file for divorce in Virginia, it’s recommended that you do so with the help of an experienced divorce lawyer – especially if you and your spouse have minor children together.

There are some cases in which a DIY divorce could be possible, with a little DIY legal help. However, you may want to consider the benefits of retaining an attorney first. Here’s how to decide what’s right for your situation.

When should you hire a divorce attorney?

Though it’s always advisable to hire a divorce lawyer, it is especially important to do so when you’re in a complicated situation related to finances, custody of children, or other sensitive legal matters with your spouse.

Here’s when you should hire a divorce lawyer:

  • You own a business with your spouse: It can be difficult to figure out how to properly divide assets and ownership of a business, so a divorce attorney will be invaluable. You’ll also need appraisers to assess the business’ worth, and possibly consultants.
  • You expect a child custody battle: If you expect your spouse to challenge you on custody arrangements for your minor children, you’ll likely need a divorce lawyer to represent you in the case.
  • You have significant assets: It will be much harder to divide assets if you and your spouse have more than one bank account, properties, vehicles, and other assets that need to be fairly divided. An attorney can help represent you and your needs in court.
  • You were the victim of domestic abuse: A spouse who is verbally or physically abusive could intimidate or coerce you into a divorce deal that is unfavorable if you choose a DIY divorce. An attorney can be your voice and advocate.
  • You or your spouse are/were in the military: A military divorce can be much more complex. A lawyer can help with the division of military pension, benefits, and more.

If you’re at all unsure of the legal process involved for filing for divorce in Virginia, your best bet is to hire a divorce lawyer. The professional will be your guide throughout, including helping with paperwork, explaining the process, and helping you understand what you can expect at each stage.

When can you use DIY legal help for your divorce?

Not all divorces are bitter, nasty battles. Sometimes a mutual decision to split with a spouse can be amicable and both parties agree to work out the terms of their divorce on their own. If this is the case for you, you and your spouse may be able to represent yourselves (also known as appearing pro se) in your divorce case.

Here are a few scenarios in which a DIY divorce could be feasible:

  • You have no children, or no minor children: With no child custody and visitation issues at stake, the divorce process may be simpler for you and your spouse. You may be able to lean on the support of a mediator, who can help decide what’s fair for both parties
  • You expect an uncontested divorce: If you and your spouse can amicably divide your assets and debts, you may wish to create a divorce settlement agreement upon separating. Once you meet Virginia’s separation period criteria, you may then file for an uncontested divorce. If you go this route, a DIY legal coach can help you through the required paperwork and filing steps, so you can feel prepared to represent yourself in court..
  • You have limited funds: Not everyone can afford to retain a divorce lawyer throughout their case. However, DIY legal help can be an affordable option if you require assistance. You’ll get the help of an attorney, the paperwork you need to fill out, file, and document, and guidance.

Consult an experienced family law attorney

No one should have to go it alone in divorce proceedings. A divorce lawyer is meant to help you navigate a stressful and emotional situation. Even if you are unsure whether you need an attorney for your divorce case, it is always advisable to consult with a legal professional before filing any court paperwork.

Remember, a DIY divorce is possible in certain circumstances, but having the help of an attorney is indispensable. My Legal Case Coach, a division of the Law Office of Patricia E. Tichenor, makes it affordable to get the DIY legal assistance you need, so you can get through your divorce without creating additional hardship for yourself.

If you’re planning to file for divorce in Virginia and would like to hire an attorney, contact us to learn how we can help.

How to Update Your Estate Plan After a Divorce

estate planning after divorce

Updating Your Estate Plans After a Divorce
NOVA Estate Lawyers – Leesburg, VA

The divorce process is often a very long and painful one. Although you may have already moved on emotionally, some legal aspects of your life can’t move forward until your divorce is finalized by the court.

When you do receive that long-awaited divorce decree, one of your first priorities should be updating your estate plans. If you didn’t enter into a settlement agreement or obtain a “divorce from bed and board” during your separation period, your spouse may still have been entitled to inherit as much as 50 percent of your estate if you die during that time. Once you’re no longer legally married, your ex cannot benefit from your estate unless you want them to.

One exception is retirement accounts and life insurance if governed by federal law. You must update your beneficiary designations to remove your ex’s name from them if you want to be certain they do not inherit from you (see more on this below).

Which estate planning documents should I update post-divorce?

Following your divorce, you’ll want to review all your essential estate planning documents to see where your spouse is named. Here are a few common items to address:

Your will. As mentioned above, an ex-spouse won’t inherit anything left to them in your pre-divorce will, nor will they be allowed to serve as your executor if you named them as such. But if you don’t appoint a new executor and beneficiaries for your estate, a probate court will decide that for you. To reduce time, frustration, and costs for your family, make sure your will gets a thorough revision after your divorce. It’s important to note that any bequests to an ex-spouse’s family members will still be valid, so considering changing those as well.

Trust arrangements. Unlike your will, spousal trust arrangements are not automatically voided upon divorce. If you named your spouse as a trustee or beneficiary in your revocable living trust, consult with an estate planning attorney to make the appropriate changes. Unfortunately, if your trust was irrevocable, you cannot change it to exclude your ex-spouse unless that trust contains administrative provisions at the time it was originally drafted that permit you to void the document if you and your ex ever divorce.  In addition,  if you never funded that irrevocable trust, then you could control what happens with it by simply choosing to create a new trust and never titling any assets into the old irrevocable trust created during your marriage.

Power of attorney agreements. In Virginia, a durable general power of attorney (for financial decisions) where a spouse is the agent is deemed invalid upon filing for divorce or separation. However, a durable medical power of attorney – which lets your agent make medical decisions for you if you’re incapacitated – still stands, even after a divorce. If your spouse is currently named as your POA agent, change these designations as soon as possible.  If you’re entering into a settlement agreement, make sure it contains provisions that revoke your spouse’s role under all powers of attorney executed by you during the marriage.

Legal guardianship designations. If you and your ex have minor children, you likely named a legal guardian together in your wills in the unlikely event you both died. While courts typically grant custody to a child’s other parent when one dies (unless they are deemed “unfit”), be sure that any other guardians named in your will are people you still feel comfortable with, such as an in-law.

Direct beneficiary accounts. Insurance policies, retirement plans, and other “payable on death” accounts have their own separate beneficiary paperwork. By law, certain policies will not pay out to an ex-spouse, but it’s still important to appoint new beneficiaries after your divorce to ensure your money goes where you want it to.

What if I want to keep my ex-spouse in my estate plan?

The Commonwealth of Virginia automatically negates any inheritance to an ex-spouse in wills written prior to a finalized divorce. However, there may be circumstances in which you still want your include your ex in your estate plan, particularly if you have minor children.

If you want to leave money or property to your ex-spouse specifically for the care for your children, the best way to do this is to create a revocable living trust. This allows you to title your property in the name of your trust and then appoint your ex as the trustee, who manages the assets on behalf of your children until they reach adulthood. If you don’t already have a trust, an attorney can help you create one.

If you have an amicable relationship with your now-ex and still want to leave property directly to them, all you have to do is write this into a valid post-divorce will.

Ask an estate planning attorney.

Even if you know exactly how you want to change your will, trust, power of attorney agreements, etc. post-divorce, you should still consult with an estate planning attorney to make sure your documents have the proper legal language and offer the maximum benefits for your loved ones.

Located in Northern Virginia, The Law Office of Patricia E. Tichenor, P.L.L.C. is experienced in both estate law and family law, so we are uniquely positioned to help with your estate planning needs after your divorce is final. Contact us today to get started.

The Law Office of Patricia E. Tichenor, P.L.L.C.
Professional Legal Services or Legal Representation
(703) 669-6700

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