If You’re Thinking About Divorce
What are the Grounds for Divorce in Virginia?
It’s a question family law attorney Rebecca Wade gets all the time: What are the grounds for divorce in Virginia? In this week’s FAQ Friday, Wade explains the difference between fault-based divorce and no-fault divorce.
In a fault-based divorce, the spouse filing has to prove fault on the part of the other spouse — while, in a no-fault divorce, the spouse seeking a divorce does not.
What are the Fault-Based Grounds for Divorce?
- Desertion (constructive or actual)
- Felony conviction after the marriage
What are the No-Fault Grounds for Divorce?
The no-fault grounds for divorce require a couple to be separated for 12 months before filing for divorce. One exception is if there are no minor children and the divorce is entirely uncontested. In that case, a spouse can file after 6 months. “One of the reasons people in Virginia often choose to file for divorce under fault-based grounds rather than no-fault is because they have to wait those full 12 months to file,” Wade explains. “The grounds for divorce have to exist at the time of filing, so you can’t file for a no-fault divorce when you’re separated and just wait for the judge to enter the order after 12 months.”
Wade says some people strategically file on fault-based grounds even if they don’t plan to get divorced on those grounds because it gets them into court sooner. This is often a tactic for couples who are not able to reach an agreement on finances during the 12-month separation period. In this case, Wade says filing for divorce, getting in front of a court and having a judge enter orders as to how expenses are going to be shared during that period of separation can be very beneficial.
You Want to Divorce, Your Spouse Does Not: What Next?
Once the decision has been made to end a Virginia marriage, the next step is to sit down and discuss the matter with one’s spouse. This can be a difficult prospect, especially in cases in which the other party is expected to be resistant to ending the marriage. Spouses who are able to take a compassionate approach can make the remainder of their divorce far easier to manage.
Keep in mind that divorce can feel like the ultimate form of rejection. The initiating spouse is essentially saying that the relationship is no longer valuable to them and that moving forward alone is preferable to remaining married. This hurts, even in cases in which divorce is clearly the best option for all involved. Spouses should be compassionate when breaking this news and should be prepared for a series of difficult discussions to follow.
This brings us to the next point: it is unfair to expect one’s partner to immediately accept that the marriage is over. It is unlikely that the initiating spouse reached the same conclusion in a short period of time, and it is important to give one’s partner a fair chance to adjust to this news and go through his or her own emotional reaction. By allowing the time and space needed to accept the idea of divorce, spouses can avoid a great deal of the anger and bitterness that can arise when an individual becomes defensive.
Treating one’s spouse with kindness is not only the right thing to do, it is also a smart move. Anything that lowers tension between spouses will help move the divorce process forward, which is the ultimate goal. For those in Virginia who are able to take a compassionate approach, the remainder of the process can be far easier to manage.
How Condonation Can Be Used as a Defense for Adultery
One of the fault-based grounds for divorce in Virginia is adultery. While you can file for divorce immediately if you discover your spouse has had an affair, your actions after the fact will still be taken into account by the court in the divorce proceedings. Family law attorney Rebecca Wade explains how condonation can be used as a defense for adultery, on this week’s FAQ Friday.
What is Condonation?
“Condonation is essentially a legal term for forgiveness,” Wade explains. “So if you know about the affair and you then continue cohabitating and having sexual relations with your spouse, your spouse could have a defense to the adultery claim that you condoned the adultery.”
This does not mean you must immediately leave the house and separate from your spouse. However, it’s important to recognize the risk of continued sexual relations after discovering an affair if you plan to get a divorce and accuse your spouse of adultery.
How to Get a Marriage Annulled in Virginia
Annulment or divorce? The question often arises when a married couple has decided to split up. While an annulment may seem ideal for many spouses, family law attorney Jessica Leischner explains, “the chances of qualifying for one are slim in Virginia due to the very specific grounds for an annulment.”
What is the Difference Between a Divorce and an Annulment?
A divorce terminates a legally valid marriage. Whereas an annulment declares the original marriage invalid from the beginning. In order for a marriage to be annulled in Virginia, certain grounds must be met.
What are the Grounds for Annulment in Virginia?
1) Defect in the Marriage
“The first condition for a marriage to qualify for annulment is if there was a defect in the marriage,” explains Leischner. In Virginia, a marriage is considered to have a defect if there is an error in the legality or licensing of the marriage. For example:
- The person who officiated the marriage was not legally qualified to do so
- One or both spouses were too young to legally marry
- One spouse was already married to someone else at the time
- One or both spouses were not mentally competent to marry at the time
“In the limited cases where annulments are successful,” Lesichner says, “they are generally granted because of a defect in the marriage, as those can be easier to prove.”
2) Fraud in the Marriage
Another grounds for annulment in Virginia is if there’s fraud in the marriage. In the state of Virginia, fraud must be considered specific and egregious. If you are trying to prove fraud in a marriage, it involves showing that your spouse intentionally misled you and had you known about the deception, you would not have married them. Leischner clarifies that, “fraud in the marriage is not: ‘I had this other relationship on the side prior to us getting married.’ Fraud that could lead to an annulment would need to be: ‘I’m married to someone else.’”
3) Misinformation Prior to the Marriage
Misinformation is another grounds for an annulment in Virginia. That would involve a spouse withholding pertinent information prior to the wedding that is potentially damaging to the other spouse. For example, a spouse withholding the following information prior to the marriage:
- A felony conviction
- A child or multiple children
- A pregnancy by another person within ten months of the wedding date
Both fraud and misinformation may sound easy to prove, however, Leischner points out that, “generally the courts in Virginia find that what a lot of people may think of as fraud and misinformation doesn’t rise to the level of getting a marriage annulled.”
When to Contact an Attorney
If you believe that you have grounds for an annulment in Virginia, or if you are considering getting a divorce, contact an experienced family law attorney who can help you through the process.
How to Get a Divorce from a Spouse in Jail
Getting a divorce is often a difficult and complex process. But one might assume divorcing a spouse who is serving a jail sentence would be quicker and easier. However, as criminal defense attorney Rebecca Wade explains, that’s not quite the case.
How is Divorcing a Spouse in Jail Different from a Routine Divorce?
Under Virginia Law, incarcerated individuals are considered to be under a disability, which means if any action is filed against them they must be represented by a lawyer called a guardian ad litem. “The guardian ad litem’s job is not necessarily to represent the incarcerated person as if he or she were a divorce attorney,” explains Wade. “Their job is to represent the best interest of the incarcerated person, to make sure they are procedurally protected. So the reality is, it may actually be more difficult to divorce a spouse who is in jail than one who is out of jail.”
What Does Divorcing a Spouse in Jail Involve?
- Sending a process server to the jail to serve the incarcerated spouse with the divorce papers
- Asking the court to appoint a guardian ad litem to the incarcerated spouse
- Waiting while the guardian ad litem meets with the incarcerated spouse
- The incarcerated spouse possibly filing an answer or response, and possibly contesting the divorce
“You can’t just assume because your spouse is in jail it’s going to be a quick and easy uncontested divorce,” says Wade. There are people in jail with significant assets earned during the marriage. You may still be looking at equitable distribution and custody or visitation issues. On the other hand, the incarcerated spouse could be married to someone with assets and when the spouse files for divorce, the incarcerated person could fight to seek those assets from jail. Also, depending on the reason the spouse is in jail, a fee could possibly be assessed against the divorce filer.
Is It Common for a Spouse in Jail to Try to Prolong Divorce Proceedings?
“I definitely have seen people in jail throw up a lot of obstacles because perhaps they don’t want to be divorced, are angry at their spouse, or blame their spouse for their incarceration. There are all kinds of reasons that a person could try to delay a divorce,” says Wade.
When to Contact an Attorney
Despite the fact that a divorce from a spouse in jail can be difficult, Wade says that’s no reason to not go through with a divorce. “It’s important to consult an experienced divorce attorney and just be aware that the process will be different procedurally and could involve unique challenges.”
Non Citizen Divorce
In this week’s FAQ Friday, Rebecca Wade, partner at Wade Grimes Friedman Meinken & Leischner, explains the legal implications surrounding non-citizen divorce in Virginia.
What are the Most Common Issues for Non Citizens Getting Divorced?
Wade says issues most often arise when a non-citizen is married to a U.S. citizen or green card holder and the non-citizen has obtained legal status through that marriage.
When a non-citizen marries a U.S. citizen, the U.S. citizen can petition for the non-citizen to obtain a 2-year provisional green card. At the end of those two years, in order to receive a permanent 10-year green card, the couple must prove to the United States Citizenship and Immigration Services (USCIS) that the marriage still stands. If the couple is no longer together after those two years, they may not be issued the 10-year green card.
Divorce and Green Card Applications
This can become a problem if the couple decides to get a divorce. Wade explains that Virginia requires a period of separation in order to file for divorce and that people sometimes claim they were separated earlier than they really were to expedite the divorce process. In this case, when the government reviews the divorce decree and sees that the couple was separated when they were issued their 10-year green card, often the non-citizen either:
- Can’t receive a 10-year green card
- Can’t renew their 10-year green card
- Or has their application for citizenship denied
Additionally, either or both spouses could be charged with immigration fraud if they first told the government that they were married when they were issued the 10-year green card and then later claim to a divorce court that they were separated at that time.
When to Contact an Attorney
Wade says that before filing for divorce, it’s imperative to consult an experienced attorney who understands the implications of the situation.
If You’re Going Through Divorce
5 Tips for Talking to Your Children About Divorce
Divorce can be a painful experience for everyone involved. It’s important to remember, no matter the feelings you and your ex may have towards each other, this is also a life-changing event for your children. Talking to your children about an upcoming separation or divorce is no easy task, but with these five tips from Jessica Leischner, partner at Wade, Grimes, Friedman, Meinken & Leischner PLLC, these conversations might just be a little easier.
Make Sure They Know It’s Not Their Fault
Children often feel they have something to do with the separation or divorce when, in reality, it has nothing to do with them. Children need to be repeatedly reassured that the situation is not because of anything they did, and they are in no way responsible for the decision to separate or divorce. Furthermore, children need constant affirmation from both parties that they are loved, and their parents will remain present in their lives. Children benefit the most when they know they have two parents that love them despite no longer being together.
Stay Away from Negative Language
Refrain from disparaging the other parent to or in the presence of the children. Remember that the children are part of the other parent. Children often internalize negative thoughts they hear one parent saying about the other and feel that maybe something is wrong with them because they are the children of that parent. This can cause psychological harm to the children and negatively impact their relationship with the other parent. It is always best to support the children’s relationship with the other parent and show a united front as their parents. This also applies to other individuals in the children’s lives. Parents should encourage other individuals to remain neutral when in the presence of the children or in situations where the children could be made aware of an individual’s opinion of the other parent, such as social media posts.
Keep the Details Private
Your children do not need to know why you are separating or getting a divorce. They also do not need to know what, if any, difficulties you are facing as a result of separation and divorce. Children do need to know how their daily lives are going to change and how both parents are going to do their best to help them transition into their new normal.
Don’t Put the Children in the Middle
Never make the children pick sides or use the children to communicate to the other parent things that should be communicated directly between the parents. Let the children know that both of their parents’ main objective is to ensure their overall well-being. The children should never be involved in your battles or subjected to arguments with the other parent.
Be Honest About the Future
Have an open discussion with your children about the new changes in their lives as a result of the divorce. Assure them that some things may be different, but that both parents will always be there for them.
A divorce is hard on children, especially when they feel stuck in the middle. That is why knowing how to navigate a healthy conversation should be of the utmost importance to any parent discussing separation or divorce with their children. While the legal process can be challenging, you don’t have to face it alone. Jessica Leischner, partner at Wade, Grimes, Friedman, Meinken & Leischner PLLC is here to help you navigate your separation and divorce.
Four Dirty Divorce Tricks That May Cost You in Court
Divorce is stressful enough. Don’t make it worse by fighting with your soon-to-be-ex over emotionally charged tweets, a destroyed car or a shopping spree you took with their credit card. When you are in the midst of a divorce, put your desire to get revenge on a cheating spouse on ice. Your vengeful actions could harm your children, your family — and your divorce case.
Here are four hot buttons you should resist pushing:
Don’t Post on Social Media
Emotionally charged tweets and posts leave a trail of landmines that can harm your credibility in court. Judges pay close attention to what you say in your social media feed during a divorce or child custody battle. If your intent is to shame or harm the other person, even by sharing factual information, the posting looks as bad for the poster as it does for its intended target in the eyes of the judge.
Don’t Publish Revenge Porn
Posting intimate photos or videos of your soon-to-be-ex on Facebook or YouTube or wherever is more than wrong — it’s stupid. “As Rob Kardashian and Blac Chyna now know — once it’s out there, it’s out there,” says Leischner. Revenge-seekers be warned: family law courts aren’t taking this lightly. Maliciously posting or selling a video or photo that shows the person totally nude or in a state of undress with the intent to coerce, harass or intimidate is a Class 1 misdemeanor in Virginia.
Don’t Go on a Buying Spree with Their Credit Cards
It might give you instant satisfaction to go on a shopping spree with your spouse’s plastic, but vengeful buying could leave you liable for the bill, even if you use a joint card. Using your spouse’s individually owned card without permission is illegal, so you could face criminal prosecution.
Don’t Destroy Their Car
You’ve heard the story before: crazy ex destroys cheating spouse’s prized possession. Vengeful property destruction might produce a temporary smile, but it’s sure to end in a long-lasting pout when the bill comes due. Cars and other major assets can be considered marital property, to which both spouses have an equal claim in a divorce. Think of the shared price tag before swinging that bat.