What Can the Court Do While My Divorce Case is Pending?

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When a couple first starts down the path toward separation and divorce, it can be a scary and uncertain time. There are many changes with regard to finances, living situations, as well as circumstances surrounding the support and care of children. In addition, there is often a gap in time between the filing of an initial divorce case and the final trial before a Judge. To address the uncertainty during this time, Virginia courts have the power to determine issues on a pendente lite basis, or “pending litigation.” In other words, the Court can make some temporary rulings to assist the parties while their case is pending.

If you find yourself filing for divorce, know that you are not alone. Our experienced Fairfax divorce attorney from Curran Moher Weis has successfully helped clients through the court process, and is always ready to help you. call now and let´s find together the best resolution for your case.

Temporary Custody Issues

The Virginia pendente lite statute permits a Court to make a temporary determination regarding custody and visitation. Not all Courts in Northern Virginia, however, will hear custody and visitation issues on a temporary basis absent an emergency. While there are a number of situations that can constitute an emergency, some include the circumstance where one parent is completely withholding the children from the other or where there is danger to a child.

Temporary Support Issues

On a temporary basis, Virginia Courts can order that one parent pay the other spousal or child support. In many Northern Virginia jurisdictions, temporary support is based on spousal and child support guidelines. Temporary support is intended to allow each party to support himself or herself, as well as the children, until a final support determination is made by the Court or agreed-upon by the couple.

Temporary Property Issues

On a temporary basis, there are only certain issues regarding property that a Court can address. For one, a Court can order that one spouse have exclusive use and possession of the family residence. This requires that the other spouse live elsewhere and refrain from entering the family residence while the case is pending.

In addition, the Court can order that each party preserve his or her estate, or the marital estate. While this may not involve a “freezing” of accounts through financial institutions, the purpose is that neither party spends or dissipates his or her assets while the divorce case is pending so that any such assets are preserved for property division at a final trial

Other Temporary Issues

There are a handful of other actions that a Virginia Court can take on a temporary basis pursuant to the applicable code section – § 20-103. These include temporary determinations regarding medical and dental insurance, life insurance, and attorney’s fees.

 

Discuss Your Pendente Lite Divorce Issues with a Trusted Attorney

The firm of Curran Moher Weis has successfully helped clients navigate the period when a divorce case is pending, and we are here to help you. Contact our experienced Fairfax divorce attorney today.


Separation in Virginia

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You may have heard that some Virginia divorces require you and your spouse to live separately and apart for a period of time, but what does it mean to be “separated” in Virginia for purposes of divorce?

We encourage you to look for the best legal assistance you can get from a divorce attorney to help in your case and fight for your best interests. Our dedicated attorneys at Curran Moher Weis have over a decade of experience handling the most difficult divorce and family law-related cases in Northern Virginia and nearby cities.

Grounds for Divorce Based on Separation

Virginia has two grounds for divorce based on parties living separate and apart for a period of time. First, if you have no minor children and have a signed settlement agreement, the law requires that you and your spouse be separated for at least 6 months before you can file for and obtain a divorce. If you have minor children or do not have a signed settlement agreement, you must be separated from your spouse for 1 year or more before you can proceed with a divorce. While Virginia has grounds for divorce based on fault, meeting the requisite separation period allows a litigant to proceed with a no-fault divorce.

 

What Does it Mean to be Separated?

Under Virginia law, a married couple is separated, generally, when one spouse has the intent to separate and the parties physically live separate and apart. In most cases, the intent to separate must be communicated to the other spouse, but there are situations where it can be shown through action or inaction.

 

When it comes to living separately and apart, the clearest separation is when spouses live in two separate homes. This includes a spouse moving out to a new home, or moving in with a friend or family member.

 

However, for many divorcing couples, the prospect of having to support two households without a financial plan in place is untenable and the idea that parents may have to abruptly move away from their children while adjusting to separation is unthinkable. In these situations and others, Virginia divorce law permits an in-home separation. This means that the couple may live under the same roof but will still be considered to be separated for purposes of divorce.

 

Oftentimes, this requires a divorcing couple to sleep in separate bedrooms, separate household finances, do their own laundry, or a myriad of other behaviors that will support “separate” living circumstances. In addition, both or one spouse may need to have a friend or family member visit the home who can attest to the couple’s separate living situation within the home.

Learn How a Fairfax Divorce Attorney Near You Can Help

If you are wondering whether your circumstances will qualify as living separate and apart, or you want to commence a separation from your spouse, you will want to discuss your particular situation with a divorce attorney. A Curran Moher Weis attorney can advise you on separation from your spouse. Contact us to learn about our services.


How to Get a Divorce in Virginia

The 6 Steps To Prepare Yourself For a Divorce

 

  1. Don’t wait to protect yourself! Know your rights early.

Clients often come to see me in the early stages of separation and divorce. Sometimes a client is just looking to know “what if” scenarios if one of them decides to divorce.  These clients almost always leave saying something like “wow, I never knew that – thank goodness I met with you,” or “I will definitely take the steps you recommended if we decide to separate.”  I have also had clients come to me months or even a year or more after they or their spouse made the decision to divorce.  Sometimes that delay has put them in a bad position as they have made decisions I would have cautioned them against had they met with me sooner.  If you are considering separation or divorce (or you think your spouse is), speak with an experienced attorney as soon as you can.  There are almost certainly things you can do to put yourself in a better situation when it comes time to divorce.  These may include dividing bank accounts, opening new bank accounts, collecting information and documentation on your spouse’s financial and personal situation, and a whole host of other things.

  1. Be prepared when you meet with an attorney.

There are several things you can do to maximize your first meeting with an attorney:

  • Create a list or spreadsheet of the assets and debts you know exist. Sometimes people don’t have all this information and that’s fine, but having a list of what you do know about is often very helpful.  Be sure to let your attorney know if you believe your spouse may be hiding assets, or has been keeping you in the dark about what they have;
  • Prepare a list of questions you have. The attorney you meet with should be able to answer your questions at the initial consultation, or if a question cannot be answered at that time, explain why that is;
  • Determine what your priorities are and communicate them. Also, give thought to what you would like your post-divorce life to look like.  Do you intend to relocate?  Do you see yourself as being the primarily caretaker of the children, or more of a shared parenting arrangement?  Do you want to stay in the marital residence or have it sold?  Do you expect to retire soon, or make an employment change, like starting a business?
  1. Live separately.

In most circumstances, you and your spouse must live separately for one year before either of you can apply to the court for a divorce.  Separation generally means one of two things: 1) that someone moves out of a shared residence and either or both parties have the intent to pursue a divorce, or 2) the parties live separately in the same residence and either or both parties have the intent to pursue a divorce.  Moving out is a clear demarcation for separation, but living separately in the same residence can be more challenging.  If you are considering living separately under the same roof, you can see our checklist of things you should be doing (if possible) to ensure that you truly are living separately here: In house separation

  1. Get important things out of the house.

If there are any valuables or sentimental items that you would be very upset to lose, it is generally a good idea to get them out of the house.  Store them at a trusted friend or relative’s house, or in a storage facility.  You may also want to download copies of family photos and videos onto a cloud service or external hard drive.

  1. Know that the date of separation is the date of financial separation and act accordingly.

In Virginia, the date of separation is the date of financial separation.  Everything that is earned before the date of separation is presumed to marital property.  Every debt that is incurred before the date of separation is presumed to be a marital debt.  Conversely, after the date of separation all income earned is presumed to be the separate property of the party who earned it, and all debt is presumed to be the separate debt of the party who incurred it.  What does this mean in the real world?  It means that in most cases, it will be a good idea for you to open new credit cards and bank accounts after the date of separation to keep your separate property separate, and marital property marital.  Consult with an attorney on how best to use the accounts created.

  1. Consider the process you want to use.

In Virginia besides litigating in court, there are several processes you can use to get from a separation to a completed divorce.  They are negotiation, mediation, and Collaborative Law, and information about them can be found here:  Divorce without court: options for a less cumbersome, stressful process.  It would be a good idea to review these options and discuss with your attorney which process option you believe may best fit your situation.

When you’re considering separation and divorce, it can be a challenge just figuring out where to start!  Fortunately, at Curran Moher Weis, we have the experience and expertise to help you navigate these waters.


WHAT YOU NEED TO KNOW ABOUT FUNDING EXPENSES DURING A SEPARATION

Separation and divorce can be described by a lot of different adjectives, but “cheap” is not one of them. In a separation, a family goes from living in one household to all of a sudden, living in two households, with two mortgages or rents to pay, two sets of utility bills and a host of other doubled or more complex set of shared expenses.  A party may also find themselves having to pay spousal or child support on top of household expenses. How can this dynamic be sustained financially until a final divorce and settlement is reached?

Know What Funds are Available

A good starting point for someone going through a separation is to know what available funds you can draw from and when.  This blog will shed a bit more light on that:

When possible, expenses should be paid out of current income as opposed to savings or other types of accounts.  When that is not possible, utilizing funds from a savings account, selling off securities and investments and even taking a premature withdrawal from your retirement accounts are less ideal but viable backup options.

If there has been no court order entered yet, you may draw down on bank accounts and investment accounts provided it is for a legitimate marital purpose.  Legitimate marital expenses include rent, mortgage, utilities, childcare, groceries or personal grooming items and/or attorney’s fees.  Conversely, during a separation, one should not utilize proceeds from bank and investment accounts for purely discretionary spending such as on vacations, luxury merchandise purchases, tattoos, cars or boats.  This type of spending may be considered what is legally called “waste” or “dissipation,” which means one spouse has used marital property for his or her own benefit and a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. That definition means waste and dissipation can occur before or after the separation, and the party making such expenditures would have to account for lost assets in the final property distribution of a divorce. In these cases, it does not matter whether an account is separately titled or joint – only that the account contained “marital funds.”

Retirement accounts should be the account that is tapped into for marital expenses only as a last resort for many reasons.  With the exception of single annual withdrawals that are replaced within 60 days, there is the automatic premature withdrawal penalty of 10% plus tax penalties depending on your bracket for taking funds out of an Individual Retirement Account (IRA) or 401K prior to age 59.5.  As an example, someone in the 33% tax bracket who withdraws $49,500 from a retirement account prior to age 59.5 can expect to net just $31,000 from the withdrawal.  Unless absolutely necessary to stay afloat, withdrawing from your retirement account is financially imprudent.

Pendente lite Order

Another important point to know if you are considering or in the midst of a separation is that once a divorce action has been filed, a court may enter what is known as a pendente lite Order. This defines the temporary obligations of the parties when it comes to spousal support, child support and payment of household expenses.  The Virginia law on these temporary Orders was amended in 2016 to provide that unless a party can show good cause, all obligations must be paid out of post-separation income.  The restriction now severely limits a spouse’s ability to use assets to provide for support and household expense needs during a separation.

The decision to utilize marital assets to pay for household expenses must be made with careful consideration, with current income being the ideal source for obligatory spending.   Discretionary spending from what would be considered marital assets or accounts should be done with caution, and with the knowledge of how that lost money will be handled in an eventual divorce. Seeking the input of a financial advisor, accountant or attorney is highly recommended before taking any significant action that has an effect on the marital estate.

Learn more about separations in Virginia here. For more information on what to know during a separation or divorce, contact one of our highly knowledgeable and skilled attorneys at Curran Moher Weis.


In-House Separation in Virginia – How do you do it?

You may know that you and your spouse must live separately for a period of time (either six months or a year, depending on the circumstances) before you qualify for a no-fault divorce in Virginia.  But must you and your spouse live in separate households before or during a pending divorce to qualify as being separated? The short answer is “probably not.” In most cases, you and your spouse can continue to live in the same home during your separation and/or pending divorce proceedings, provided you take steps to establish an “in-home separation.”

Virginia courts generally recognize in-home separations as valid.  Courts realize that sometimes divorcing spouses are unable or unwilling to maintain separate households for financial, child care, or other reasons during the divorce.

So how does an in-home separation work? That answer is a bit more complicated and there is no single way of doing it, but outlined below are some of the important things to consider when separating in the same home.


6 Myths About Separation and Divorce in Virginia

Often, clients who see me for an initial consultation arrive with information they may have learned from friends, family, or the internet – information which may not be accurate. The following are six common myths I have heard regarding separation and divorce, and the facts about each.

Myth # 1: “If we can’t agree on everything, we have to go to court.”

Fact: Although some divorce cases end up in a final hearing before a judge, the vast majority of cases are resolved beforehand — even cases that start out being very contentious.  Someone has to make decisions on issues regarding children, support, and property.  The people in the best position to make these decisions are the parties themselves, although many need help getting there.