Virginia Divorce Law: Post Divorce Negotiation

Divorce cases in Virginia are all about dividing property that both spouses acquired during the marriage and deciding issues related to the children. However, sometimes decisions have to be made after the divorce is finalized based upon factors such as changes in the law, changing financial needs, and new issues that were not foreseen during the divorce process.

So how do spouses address issues that come up after a divorce, and what options do you have to fix issues that did not appear until after the divorce was finalized?

Virginia Divorces: Separation Agreement versus Court Order

The first thing you need to be aware of is what happens during a divorce process. The first step is to finalize the divorce. A divorce can be finalized either by an agreement between the parties submitted to the judge for approval or by having a judge decide how property is to be divided. If you are able to reach an agreement, then you can have a Separation Agreement drafted which both sides can sign.

However, if you are unable to come up with an agreement, then the judge will have a trial and enter a Final Decree of Divorce which details how the property will be divided.

It is important to understand this difference because your ability to change things post divorce may depend on whether you have a Separation Agreement or a Decree that came about from a trial. There may be more limitations if it was a decree than if it was a Separation Agreement.

Reasons to Modify a Separation Agreement

There are several scenarios where you may want to modify a Separation Agreement. For example, a change in income may require a reduction or increase in spousal support. Perhaps you and your ex-spouse are having problems selling the real estate and the Separation Agreement doesn’t say what needs to happen. Or maybe there has been a change in retirement benefits and now one of you are not getting what you expected out fo the retirement accounts.

So how do you modify a Separation Agreement to address these issues?

Modifications Post Divorce

Do you have a Separation Agreement or a final decree and you and your spouse agree that it needs to be modified? There are two major different ways of handling that issue. It largely depends on what needs to be modified. If you are seeking to modify spousal support, that is going to be more complicated than if you are seeking to modify an agreement on how real estate is to be sold.

If you are dealing with spousal support modifications, you need to make sure that any agreement you and your spouse come up with is approved by the judge. If you come to a private agreement to modify support but do not get judge approval, that may result in a nasty surprise several months later when your spouse attempts to enforce the original order.

It is far simpler to modify provisions related to dividing assets such as real estate. Courts offer more lattitude to parties who are trying to figure out how to handle post-divorce sale of real estate.

Why You Need a Divorce Lawyer

Whether you and your spouse have agreed to modify spousal support post-divorce or whether the old Separation Agreement is interferring with the sale of real estate, it is important to consult with a local divorce lawyer to discuss your options. You need to make sure that you follow the correct procedure and get the appropriate approvals before moving forward and relying on those agreements. Failure to go through the proper procedures could result in the post-divorce agreement being invalidated. Make sure you call a lawyer before modifying a Separation Agreement or Order after your divorce.

Spousal Support: How to modify.

Virginia law allows you to modify a spousal support order if there has been a “material change in circumstances.” Common examples of times when it would be appropriate to request a modification of spousal support include getting laid off, obtaining a new job, or suffering from a workplace injury that makes you unable to work.

So how often will a court modify a spousal support order, and what do you need to know before you file?

What is a material change in circumstances?

The first thing that you must prove before the court will grant you a modification of your spousal support is that there has been a material change in circumstances. This is a legal term of art that means that finances or living arrangements have changed such that it would be fair to modify the spousal support order.

With respect to changing finances, the most typical times a court will modify your spousal support order is if either party changes their employment situation. A change in employment can be caused by any number of things. However, the change cannot be due to an intentional decision by the employee to take reduced hours or reduced pay. If you intentionally reduce your pay, the court will assume you are still making the same amount of money.

With respect to a change in living arrangements, most court orders only require you to provide spousal support so long as the other party is not living “in a relationship analogous to marriage.” Meaning, if the other party moves in with a new significant other who is taking on the bills or the other party gets remarried, that may also be grounds to amend the spousal support.

How to prepare before filing for a modification of spousal support.

The court will require you to produce a number of documents when you ask for a modification of spousal support. You must prove the material change in circumstances that are the basis for your request. Common examples of documents you need to obtain include three (3) months worth of pay stubs, tax returns, or letters from your doctor showing a disability. Either way, you need documentation proving your case.

Furthermore, it may be a good idea to attempt to negotiate with the other party. After time has passed and temporatures have cooled, the other side may be willing to revisit spousal support. Coming to an agreement may save significant costs.

Why you need a lawyer.

Spousal support modification is complicated in Virginia. At the very least, you need to know how to obtain the documentation you need to prove your case. Additionally, you may need to prove the income or living arrangements of the other party. A lawyer can assist by preparing your case for presentation to the court or negotiating with the other party. If you are considering a change in spousal support, seek out a lawyer.

Child Custody: How to Modify an Order

The purpose of a child custody order is to maximize the amount of time each parent spends with their children and to encourage the personal and academic growth of the children. As children get older, their needs and schedules change. Parents also get new jobs and change houses. Whenever there are significant changes in you or your children’s lifestyle this can create the need for modifying your child custody order.

So, how are child custody orders modified?

Material Change in Circumstances

Before a child custody order can be modified, there must be a “material change in circumstances.” Virginia law requires that the lifestyle change that has happened must be directly related to the wellbeing of the children, and must be a significant change. Courts are unlikely to change a custody order over smaller changes such as a rescheduling of one extracurricular activity.

A common example of a material change in circumstance is a move or an intended move by one of the parents. Changing houses can have a significant impact on your children’s schedules. The move may result in longer commuting times, less time at home for one of the parents, and an increased burden on the non-custodial parent.

Another common example is a job change by one of the parents. If one parent takes on extra shifts at work, this may result in less time spent with the children. Courts are always looking to maximize time with both parents. Therefore, if one parent is unavailable, then the custody may shift to the other parent.

With respect to the children, the most common example of a material change in circumstance is age. As children grow older, they go to different schools and take on more extracurricular activities. The parent that is in a better position to encourage that personal growth for the children is a better candidate for custody.

Best Interest Factors

As with the initial custody decision, the Court will look at the same factors as before. The chief concern in a modification proceeding is the best interests of the children. As such, the Court looks at information including the best education for the children, extracurriculars and any other factors that will help the children mature.

Timeline for Modification

Every court is different. Some courts have more cases than others. However, most modification cases can take between two (2) months and one (1) year depending on how busy your particular court is.

How a Lawyer Can Help You

A lawyer is able to help you prepare your case for the Court. Custody proceedings are emotional, and it is hard to explain your story in a way that the judges are able to appreciate. A lawyers is also able to ensure the attendance of your witnesses and prepare you for what not to say to the Court. Finally, a lawyer can make sure you file all the necessary paperwork.