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How To Position Your Self For A Divorce? First You MUST Understand The Process!
A contested divorce is one in which there are “issues” that are not agreed to between you and your spouse. “Issues” can be who gets custody of your child, whether you or your spouse should pay alimony (referred to as spousal support in Virginia), or even when do you get visitation with the family dog.
A truly uncontested divorce is one in which you and your spouse have settled all issues (custody, visitation, support, and property) by way of a property settlement agreement. That means there is nothing left for a court to decide other than formalizing your Final Decree of Divorce. What is a property settlement agreement? I’ll answer that in a separate article.
To put it simply, if there are any issues that one party insists should be decided by the court your divorce becomes contested.
IN THE BEGINNING (AKA WILD WEST)
A divorce formally begins with the filing of your Complaint for Divorce in the appropriate Circuit Court and having the Complaint served on your spouse. Keep in mind that Virginia generally requires that you and your spouse have lived separate and apart for at least one year before you are even allowed to file.
But you ask, what if my spouse has just moved in with another woman and left me at home with the kids leaving me no way to support my family? Do I have to wait a full year? The answer is no. The Courts in Virginia recognize that there are certain situations whereby a spouse should be allowed to file in Court immediately. These situations include adultery, cruelty, and desertion. In the aforementioned example of your spouse leaving you with no support, you would be permitted to file immediately for a divorce on the grounds of adultery and desertion.
Generally, we use the term “grounds” when filing for a divorce on adultery, cruelty, or desertion. So how do you file on “grounds” so that you can get into court early? You simply have to allege those grounds in your complaint for divorce.
But what about a case such as adultery where you may not be able to prove it? Can you allege grounds if you may not be able prove it? The answer is a resounding yes. When it comes to filing the divorce complaint on grounds, the Court does not require you to prove the grounds (in this case adultery) it only requires that you properly allege it. Then how do you properly allege adultery? There is really no bright line test but at a minimum you would want the name of the paramour, and the date and place the alleged adultery took place.
Getting Some Ground Rules Established
What is the benefit of filing early? You can ask the Court to enter an temporary order setting some ground rules between you and your spouse until your final divorce. This is done by filing a motion for a pendente lite hearing (pronounced pen-dent-eh-leet-eh) and eventually having the Court enter a pendente lite order. What does pendente lite mean? It means temporary or “pending the litigation” of the final divorce.
Trust me, by the end of your divorce the word pendente lite will become part of your vocabulary.
Imagine the pendente lite hearing as an abbreviated (limited to two hours in Prince William County) custody, visitation, and support hearing. The time limit often prevents you from presenting any testimony other than your own.
What ground rules can the Court order pendente lite? For starters, the Court can determine custody, visitation, and support of your minor children. The court can also determine spousal support and which party gets to remain in the marital home.
Generally, the pendente lite hearing is not the time to try and shred your spouse to pieces in front of the judge. Remember, if you waste your half of the two hour hearing assailing your spouse you will have presented no evidence that it would be in your children’s best interest to reside with you. If you are trying to get/keep custody of your children you should be laser focused on that issue.
When determining which parent should have custody of a child the Judge will have to consider the basics first. Can each parent provide food, shelter, and clothing for the child? This may seem simple, but you would be surprised at how many opposing parties I have cross examined at a custody hearing who reluctantly admit that they do not even have an extra bedroom for their child. If all things are equal between parents, the one with a bedroom will prevail.
After introducing evidence that my client can provide the above mentioned custody basics, I then address the 10 factors that all judges making a custody determination must consider. These factors are listed in Virginia Code Section 20-124.3. Rather than cut and paste I will give you the link to VA Code Section 20-124.3.
If you are seeking pendente lite spousal support the Court is primarily interested in your spouse’s ability to pay and your need for spousal support. Again, there is a temptation to go into Court and focus on all the negative aspects of your spouse. But you must keep focused on your need for support and your spouse’s ability to pay.
The Long Haul To Court
Keep in mind that it takes time to get your pendente lite hearing before the court. There are a lot of legitimate reasons and tricks to delay the hearing. For one, attorneys must ensure that the other party’s counsel is available on the date. But the single most frustrating aspect of getting a pendente lite motion before the court is the thirty minute rule.
To better understand how the thirty minute rule works in Prince William County you must first understand that anyone can place a motion on the Court’s Friday motions day docket with two weeks’ notice. However, Friday motions are limited to thirty-minutes. Now you ask how can the Court determine custody, visitation, and support in thirty minutes? It can’t.
Therefore, if any party informs the Court that the matter will take longer than thirty minutes (or if the Judge decides on their own) you have to go and get “a date certain”. “A date certain” is a trial date agreed upon by the parties and set through Judges Chambers on a date available to the Court. This often means getting a “date certain” two or three months away depending on how full the Court’s docket is.
But wait, my spouse has left me and my children without any support and now I have to wait two or three months? The short answer is yes. The only caveat is that if you win support at the pendente lite hearing the Judge will back date it to the date of filing you complaint for divorce.
So imagine you file your complaint for divorce on the grounds of desertion in August. You get it on a Friday motion’s day docket in early September. Opposing counsel enters an appearance and advises the Judge that this matter will take more than thirty minutes. You go to Judges Chambers and the first available date is in early October. However, opposing counsel will be vacationing in Southern France on that date (and trust me that is a valid reason). The next available date after opposing counsel returns from vacation is in November.
Now I have to break the dreaded news to my client that our pendente lite hearing will not be until November.
The Hope For Civility
Undoubtedly my client gasps “how am I going to pay the mortgage without any support?” This is when I write a politely worded letter to opposing counsel asking him to remind his client of his obligations to his family. How failing to support his family will not gain him any favors from the Judge at the November pendente lite hearing. And most importantly, that when the Judge finally enters a support order it will be back dated to the date of filing. So if I estimate $1,500.00 in child support and $1000.00 in spousal support his client will be $10,000.00 in arrears come November.
On the flip side, if my client looks like he will be the paying spouse I will advise him to pay at least child support per the Virginia Support Guidelines and enough marital bills to prevent his children from becoming homeless.
As you can see, the first couple of months leading up to the pendente lite hearing can be the most stressful of any divorce. Your attorney will have undoubtedly spent a lot of time getting you to this point. However, it may seem to you as nothing has been accomplished.
In the phase leading up to the pendente lite hearing I often get the following questions from my client:
-Since my spouse left the house can I change the locks on the marital home?
-Do I need to pay child/spousal support?
-Can I refuse my spouse visitation with our child when they insist on involving their new boyfriend/girlfriend?
-Is my spouse allowed to prevent me from seeing my child?
-What do I do when my spouse is no longer contributing to the marital bills and I cannot pay the mortgage?
The best answer I can give is that there are no real answers. Until a Court decides who has custody of your child, who should pay support, who should reside in the marital home, and what the specifics of visitation there are no rules; that’s why I call the period between filing for divorce and the pendente lite hearing the wild west.
My suggestion for answering any of the above questions is to ask your self if you could look a judge in the eye and explain why you chose to act in such a way. For example, could you explain to a judge why you refused your spouse visitation with your child because they brought their boyfriend/girlfriend along for visitation? I suspect you could.
Another example, could you look a judge in the eye and explain why you completely stopped supporting your spouse and children causing them to go without the basic necessities such as clothing and food? You probably could not.
The day for your pendente lite hearing has finally arrived. At this point, that word “pendente lite” rolls off your tongue like it was always part of your vocabulary. This is when the uncertainty of having a third party determine intimate family issues usually begins to creep up your spine. What if the Judge does not give me custody of my child? What if the Judge orders me to pay $3,500.00 per month in support? Will the Judge take into account that I have already scheduled a vacation with my children next month?
At this point most of my clients begin to see the advantages of trying to resolve some or all the issues. Usually counsel for both parties will be in the halls of the courthouse franticly running from their client’s to each other trying to reach a settlement. The Courts generally encourage this and will hold off the trial for a short time to allow the parties to try and settle. Maybe Mom/Dad will give up his claim for primary physical custody if mom gives him more visitation days. Maybe Dad will agree to pay the mortgage on the house and the utilities if Mom drops her claim for spousal support.
The pendente lite hearing is very important because it often gives a preview of how the Judge will rule at the final hearing.
When approaching a pendente lite hearing it is best to try and put yourself in the place of the judge. He/She knows nothing about your case except for what he/she hears in the next two hours. If children are involved, the Judge needs to make a decision that is in the best interests of your children. I can only imagine that this is a difficult decision for any Judge.
Although this ends the first part of my article, please feel free to contact me at (703) 881-8213 with any other questions. Even if you just want to run some issues by me I would be happy to give my thoughts on your particular situation. I will try my best to answer your questions on the phone (if that is what you desire) and I will not force you to make an appointment to speak to me. I really do enjoy helping client's through these difficult situations and I never charge for initial consultations.
More to come…wait it is finally here! Anatomy Of A Contested Divorce Part II