While every divorce is unique, they all have the same goal: end the marriage.
A divorce typically starts informally when the parties separate. While this may seem like the "easiest" part of a divorce, oftentimes it is the most critical part. Figuring out things such as parenting, financial responsibilities, and property division are very important throughout the divorce process but even more so before the actual breaking of the marital relationship occurs.
In Virginia, a divorce action begins when one party files a Complaint, or formal request for divorce, and usually with the Circuit Court in the city or county in which they reside. 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 or Petitioner, and the responding party is called the Defendant or Respondent.
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 can be very complex.
Resolving Issues Temporarily
Once the Complaint is filed, certain temporary issues such as custody and/or support may be litigated or negotiated. In Virginia, temporary issues are referred to as Pendente Lite issues. If temporary issues must be litigated, the parties must schedule a Pendente Lite hearing. At the conclusion of this hearing, the Court will enter a Pendente Lite Order that will govern all of the "temporary" issues pending entry of a final decree of divorce.
The Discovery Process
Every divorce involves many things and information gathering is at the top of the list. Information gathering 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 techniques. “Discovery” refers to the formal process of obtaining information from each party.
Once the Discovery process is complete, the attorneys for each party will set dates for trial on all unresolved and outstanding issues (support, custody, and property division).
The typical time frame between the initial filing for divorce and a trial on the issues is approximately 12 to 18 months. However, the time frame can always be extend or shortened depending on the complexity and/or exigencies of the case.
Settlement and/or Trial
At any point in the litigation, the parties may reach an agreement on some or all of the outstanding issues. If they do agree, they can enter into a “Property Settlement Agreement” or a Consent Order. When the parties are able to resolve all outstanding issues by way of a "Property Settlement Agreement" or Consent Order, the divorce is normally a straightforward administrative process. When the parties cannot resolve the outstanding issues, a trial will be necessary and a Judge will be forced to make the decisions for them.
Decisions from the Juvenile and Domestic Relations District Court may be appealed to the Circuit Court. In these instances, the parties have a new trial on all issues raised in the Juvenile Court proceeding. After the Circuit Court trial, the Judge may remand the case back to the Juvenile Court for future modification or enforcement proceedings. Alternatively, the Judge may rule that the Circuit Court should retain control of these proceedings.
Decisions from the Circuit Court may be appealed to the Virginia Court of Appeals. In most cases, only specific issues or rulings may be appealed to the 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 on these particular issues or rulings.
After your divorce is complete, certain court decisions or agreements between the parties may require modifications based upon a material change in circumstances. For example, a party may significantly increase his or her income rendering the former support award inequitable or outdated. The other party may therefore seek to have the award changed based upon such circumstances. Generally speaking, issues related to child custody, visitation, and/or support may be modified upon a filing of a Motion to Amend.
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.
Divorces can be daunting, the family law attorneys at Smith Law Firm, PLC are dedicated to guiding you through the process. Please do not hesitate contacting one of our attorneys for assistance and guidance.