Mediation Topics of Interest
Grounds for Divorce in Virginia
Distribution of Assets and Debts
Legal Separation
If you and your spouse are not living together and one of you intends the separation to be permanent, then you are separated. Virginia does not have a “legal separation” status or “legal separation proceedings.” There are very good reasons for having a written Separation Agreement, but nothing prevents one party from moving out prior to developing such an Agreement.
Back to Top
Grounds for Divorce in Virginia
In Virginia, most grounds for divorce require a waiting period of one year:
- No Fault: You have lived separate and apart from your spouse for a year and have not had sex with him or her during that period. If you follow strict rules and have a witness, you can live separately under the same roof during that period. If there are no minor children from your marriage, then the required waiting period is only six months. You can negotiate the terms of your divorce before, during, or after the period of separation and, if your spouse is willing, can have an uncontested divorce.
- Physical cruelty.
- Desertion. This means one party left without a good reason.
- Constructive desertion. This means one party forced the other to leave.
There are two reasons for getting divorced that do not require a waiting period:
- Adultery (but proving adultery can be very ugly and expensive).
- Your spouse’s being convicted of a felony and sentenced to more than one year in prison.
Back to Top
Legal Custody
Legal custody is about who makes the major decisions, such as whether to send a child to private school, what religion to raise the child in, and whether to enroll a child in a sports program that might be physically dangerous or might occupy almost all of the child’s non-school time. Parents often decide to have joint legal custody. If the parents cannot cooperate in making big decisions, one or both may seek sole legal custody. Custody battles are very expensive. I have seen people who earn only $20,000 or $30,000 a year (gross income) pay $50,000 or more to an attorney to fight for legal custody.
Back to Top
Physical Custody and Visitation
If the child resides with one parent almost all of the time, then that parent has sole physical custody. If the child spends more than ninety days per year with each parent, then the parents have shared physical custody. To count as a full day, a visit must last 24 hours. To count as a half day, a visit must include an overnight stay.
Back to Top
Child Support
Virginia has guidelines for calculating what amount of child support is appropriate. A family mediator, a family law attorney, or any other trained person can do the guideline worksheet. Parents can agree to deviate from the guideline amount if they think that is best for their children. Each child has a right to financial support from his or her parents until the child is 18 years old and has graduated from high school or until the child is 19 years old, whichever comes first.
Back to Top
Spousal Support
For the period when the parties are separated but not yet divorced, most jurisdictions now use formulas developed by Fairfax County courts. If child support is not involved, then spousal support will ordinarily be 30% of the gross income of the spouse who earns more minus 50% of the gross income of the spouse who earns less. If child support is involved, then spousal support will ordinarily be 28% of the gross income of the spouse who earns more minus 58% of the gross income of the spouse who earns less. The parties or the Court can deviate from the formula for a variety of reasons. When the divorce is finalized, many factors can influence what amount of spousal support is to be paid and for how long. Often the spouse with the higher income pays spousal support for about half as many years as the marriage lasted, but many factors influence that decision. No formula is used with any consistency.
Back to Top
Distribution of Assets and Debts
If you have property and/or debts, you or the Court must decide who gets what. If you and your spouse voluntarily agree about how to divide your property, put your agreement in writing, and sign and notarize the Agreement, the court will almost always respect your agreement. If you leave decisions to the Court, the Court first decides what belongs to each party as separate property, which property is marital property, and which things are hybrid property (partly marital property and partly separate property). Retirement accounts funded during the marriage are ordinarily treated as marital assets. A long list of factors can be considered in deciding what distribution of marital and hybrid property would be equitable (fair but not necessarily equal). The factors include the contributions of each party to the family and to the acquisition of property and debts, the duration of the marriage, the ages and physical and mental condition of the parties, dissipation of marital property for a non-marital purpose (for example, a paramour), and tax consequences. If you have substantial wealth to divide, involving a Certified Divorce Financial Analyst might be a smart move.
Back to Top
Modifications
As children get older, their developmental needs and their schedules change. Parents lose jobs, get new jobs, and relocate. There may be major changes in income levels. A mediated agreement or a court order created a few years earlier may no longer seem appropriate. Discussing modifications and putting changes in writing may be a good idea. If either parent has reason to request a change in custody, visitation, or support, he or she can petition the court to modify an earlier order. Compared with having a judge hear evidence and decide about modifications, developing a new agreement through mediation saves time, money, and sanity and builds toward better co-parenting.
Back to Top
Advantages of Mediation
In many cases, you can save thousands of dollars by having a mediator help you and your former partner resolve as much as you can in mediation. The mediator’s area of expertise is facilitating communication – helping both parties say clearly what matters to them and why, hear what matters to the other person and why, consider a variety of ways to resolve their issues, and develop agreements about parenting plans and financial issues. An attorney’s job is to represent one party’s interests against the other party, sometimes with little consideration of what will be best for the children. While it is a good idea for each party to get some advice from a lawyer and to have a lawyer review a proposed agreement before signing it; it may not be necessary to pay a lawyer to do your negotiating for you. You can hire an attorney to advise you without paying thousands of dollars to have an attorney represent you. An attorney who is representing a party is likely to issue Interrogatories, Requests for Production of Documents, and Subpoenas and to take Depositions — time-consuming and expensive ways to gather evidence. If a case goes to trial, it is not unusual for each party to pay his or her attorney $30,000 to $50,000.
For parents, an additional advantage of mediation is that it is a cooperative process. It strengthens a foundation for constructive co-parenting in the future. Adversarial litigation does a lot of damage to relationships and makes it hard for the parents to work with each other in the future to raise their children well.
Back to Top
Choosing a Mediator
When choosing a mediator, look at their training, certification, and experience. Also look at what their websites say about how they work. Some mediators stress helping parents focus on what is best for their kids. Some have extra expertise with regard to financial issues. Some mediators are also attorneys but, when mediating, cannot give either party legal advice. Other mediators, with lower fees, are not attorneys. In Virginia you can find Certified Family Mediators who are available in your jurisdiction by going to the state’s Searchable Mediator Directory. All Certified Family Mediators have completed weeks of training programs and met mentoring requirements established by the Supreme Court of Virginia.
Back to Top
Emotional Aspects of Divorce
Feeling angry, hurt, and/or betrayed is normal during separation and divorce. Even if you initiated the separation, you may experience all the emotions of grieving over the loss of your partner or of the life you had. A support group can be wonderfully helpful. If you are dealing with intense hostility, anxiety, and/or depression, professional counseling may help you and your children get through this difficult time. Keep in mind that counselors and therapists are like doctors and plumbers: Some are very good at what they do; some have questionable levels of competence; some actually do more harm than good. Interviewing more than two therapists may serve you well.
Back to Top
How Divorce Affects Children
Most children do not want their parents to get divorced. They may feel angry, depressed, and/or scared. Most, however, are resilient. They learn to cope with the changes in their lives. Lasting damage results not from the divorce but from (a) ongoing conflict between the parents, especially if it occurs in the presence of the child, or from (b) the loss of a parent as visits become less and less frequent and perhaps disappear altogether. If you have children, keep communication open with your partner or ex-partner. As long as you have minor children, you and your ex must work together. If you are worried about your ex with regard to mental health issues, drug/alcohol issues, or abuse or neglect of your child, seek professional advice about what to do. Otherwise, encourage your ex to be highly involved in your child’s life. Children usually do best when each parent supports a positive relationship and a good amount of time with the other parent. Some ex-couples benefit from joint counseling about how to communicate and cooperate.
Back to Top
Advice
Have reasonable expectations. No matter what you do, you are not at all likely to win on every issue. If you have an attorney, ask him or her to help you be realistic.
Back to Top
This site is for informational purposes only. Nothing here should be construed as legal advice.
For a free consultation about whether family mediation would be helpful for you, contact Dr. Virginia Colin at mediatorQ@gmail.com or 703.864.2101.