Divorce Mediation Plus™

Divorce and Family Law

Topics Discussed:

  1. Settlement
  2. Grounds for Divorce
  3. Child custody and Visitation
  4. Virginia Child Support Guidelines
  5. The Non-Settled Case

When you enter the world of divorce, you enter a minefield of legal, financial and psychological traps. There are even tax pitfalls - lots of them. Most people don't think of all the issues that need to be addressed, but if they aren't addressed in the divorce process, they will cause trouble later. In this section, we'll discuss some basic concepts about divorce in Virginia.

1. Settlement

Nationwide, about 99% of divorce cases are not decided by a judge. They end in a settlement - sometimes even in the middle of a trial, after huge costs for trial preparation. There are a number of ways of achieving a settlement. The best is Divorce Mediation, discussed in detail in another section of this website. Some people are just not good candidates for mediation (or never think of it), and for them the two-lawyer negotiation process is an alternative. What you definitely want to avoid is do-it-yourself: "let's just sit down between the two of us and write something up." If what you produce is a non-binding, unsigned outline for your attorneys or mediator to use as a starting point, fine. But if you treat it as a finished product and sign it, that piece of paper will cause more problems and generate more legal fees to clean up the mess than you could imagine.

What a "settlement" looks like is a legal contract between the two of you, which is negotiated without any court intervention. Lawyers generally call this document a "PSA" for "property settlement agreement," although it deals with much more than property. If you have children, it will include your parenting agreement - what some call "custody and visitation." It will include the disposition of the house, the furniture, motor vehicles, family photographs, retirement accounts, stocks and stock options, and so on. There's life and health insurance to be decided. Child and/or spousal support and college education for the children may be part of it. There will be provisions about taxes - who gets what deductions; who gets the tax exemptions for the children and why; how are tax returns going to be filed; how are refunds going to be divided (or additional tax paid)? How are pensions and other retirement benefits to be divided? Experienced lawyers who concentrate their practices in family law have drafted hundreds, and in some cases thousands, of PSAs. (We have drafted thousands.) The negotiating and drafting of a PSA requires knowledge, skill and creativity.

Once your PSA is done and signed, 99% of your "divorce" is over, even though you are still legally married. This is true whether your PSA was achieved through mediation or the two-lawyer adversary negotiation process. After your PSA is signed all that remains is to obtain a divorce decree from the court, which in almost all cases incorporates the PSA and makes it part of the court's order. But to get your divorce decree, you also need "grounds."

2. Grounds for Divorce

As we have all heard, there must be "grounds" to obtain a divorce. Almost all divorces these days are awarded on "no-fault grounds." In Virginia, if you live apart for one year, with the intent on the part of at least one party to terminate the marriage, that's grounds. If you don't have minor children and have a signed PSA, the required period of separation is shortened to six months. You will need a "corroborating witness" to corroborate your grounds, which can be a friend, family member, neighbor, co-worker - anyone but your spouse.

"Fault grounds" such as adultery, cruelty and desertion are resorted to less and less. The reason is that, in most cases, it's expensive and there's nothing to be gained. There are some cases, however, when "marital fault" - particularly adultery - can have serious consequences.

3. Child Custody and Visitation

First, we don’t like those terms.  They’re emotionally loaded, and often obscure more than they enlighten.  We prefer "parenting agreement."  Your divorce doesn’t end your joint obligation to cooperate in the parenting of your children.  Your agreement concerning parenting is negotiated as part of your PSA – but there are some basic terms that you should understand.

Virginia law (§20-124.2, Virginia Code) contains some definitions you should know.  There are two kinds of custody: legal and physical.  As stated in the statute: "Joint custody means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, and (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child."  To state it more succinctly, physical custody refers to the schedule of where the child lives from day to day, and legal custody refers to decision-making.  In a negotiated agreement, these issues are determined by you and your spouse, not by the court.

4. Virginia Child Support Guidelines

You may have heard that there are child support "guidelines" which determine how much child support one parent must pay to the other.  That’s true – sort of.  If you litigated your case, the judge would calculate and award guideline child support, unless the judge determined that one of the "off-guideline factors" was present (there are 14 of them in the Code).  In negotiating your settlement in mediation, we will calculate and advise you of the guideline amount, but you aren’t bound by it.  Our financial software will determine whether or not the guideline amount "works" for both parties, and if not, what will.  In a mediated agreement, you and your spouse determine the amount of child support (if any) – not the court.

5. The Non-Settled Case

If your case isn't settled, it goes before a judge for trial. Like any trial, witnesses will be examined and cross-examined (including both of you), evidence will be submitted, legal arguments will be made, etc. There will be at least five people involved in the trial: the spouses, their lawyers, and the judge. Of these five, the judge will know the least about the parties, their circumstances, their children, and their marriage. So, the person knowing the least will make the decisions. This method of resolving your issues is the most expensive, and you have the least control. The judge decides, and that's it. Famous last words: "The judge is going to see it my way."

A word about judges: Many people have an image of a judge as a wise, kind and fair person, and most are. But some are not. Like people, judges range from the superbly competent, wise and fair to quite the opposite. Unless you absolutely know who your judge will be, and your lawyer has had considerable experience with him or her, you are spinning the wheel when you go to trial, and putting your future in the hands of a complete stranger. Going to trial as a way of resolving the issues in your divorce should be the absolute last resort.

Also a word about law: Many people have the idea that law is something fixed and rigid – you just look it up in a book, and apply it.  Very seldom does it work that way, particularly in the field of divorce.  It can be highly subjective, such that different judges would make different rulings on the same evidence. Again, going to trial is spinning the wheel.

If you are considering a divorce, we strongly recommend that you read the sections of this website on Divorce Mediation and Financial Analysis and Future Planning. Please also check Frequently Asked Questions. Contact us to schedule an appointment to discuss your situation and the possibility of using divorce mediation to resolve your issues as you end your marriage.  Contact us at 703-777-4400 or mediators@divorcemediationplus.com.

Divorce Mediation Plus™

120 Edwards Ferry Road NE
Leesburg, VA 20176-2301
Phone: 703-777-4400
Fax: 703-777-4401
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