Virginia Divorce Law: Difference Between Absolute Divorce and Divorce from Bed and Board
Find out more about the difference between absolute divorce and divorce from bed and board.
There are two major categories of divorces in Virginia; a divorce a mensa et thoro (bed and board) and a divorce a vinculo matrimonii (absolute divorce). There are many factors that go into determining which of these two categories of divorce are right for your particular case. However, before going into those factors, it is important to understand the basic difference between these two types of divorce.
So what is the difference between an Absolute Divorce and a Divorce from Bed and Board?
Divorce From Bed and Board
The first type of divorce to talk about is a divorce from bed and board. This type of divorce only covers a limited number of issues, and is not a full divorce. There are some benefits to a divorce from bed and board that are not available in an absolute divorce.
One example of a benefit is that there is not as serious of a waiting time associated with a divorce from bed and board. In order to qualify for an absolute divorce, you must either satisfy certain waiting requirements (which could be up to a year) or have already qualified for a fault based grounds of divorce (which is discussed in another article.) Another benefit of a divorce from bed and board is that you can ask for temporary relief from a court in the form of spousal support or legal fees.
The downside of a divorce from bed and board is that it is a temporary measure designed to help you until you have satisfied the waiting requirements of an absolute divorce. The other downside is that there are only a limited number of scenarios that allow you to qualify for a divorce from bed and board. Additionally, you are not allowed to marry another person until after you have converted into an absolute divorce.
Absolute Divorce
The second type of divorce is an absolute divorce. An absolute divorce is intended to address all financial issues between the parties. This type of divorce allows you to marry a new person. Another major difference between an absolute divorce and a divorce from bed and board is that it will be the end of the divorce process.
Why You Need a Divorce Lawyer
It is important to hire a divorce lawyer to better understand which of these two categories of divorce is most appropriate in your case. If you need immediate relief and are unable to wait the entire time required for an absolute divorce, a lawyer may be essential in helping you pursue a divorce from bed and board. Talk to a lawyer before deciding to file for divorce.
Virginia Divorce Law: What Does a Court do in a Divorce Case?
What are the major things a court is doing in Virginia for a divorce case?
One of the most important things that people looking into a divorce often don’t know going in is what a court is doing in a divorce case. It is important to understand the basics of what goes into a divorce case before going to see a lawyer. That way, you can start getting information together that your lawyer may need in order to help you with your divorce case.
So what are the two major things that a Virginia court deals with in a divorce, and what should you prepare to help your lawyer and to save time?
Virginia Divorce Courts Decide Issues Related to Children
If you and your spouse have children together, one of the major things that a Virginia court has to deal with is how to handle who takes care of the children and how the costs of raising children is shared. These concepts are known as custody, visitation and child support.
There are two different types of custody; legal custody and physical custody. I discuss the major categories inside each of these types of custody in other articles. Legal custody, simply put, is how decisions are made for health treatment and schooling. Physical custody, simply put, is where the children are primarily living. Visitation deals with how often the “non-custodial parent” gets to the see the children.
Child support is simply the amount of money that Virginia law says a child needs to receive from their parents in order to thrive. There are many different ways to calculate child support depending on a lot of different factors.
Virginia Divorce Courts Decide Issues Related to Debt and Money
The other major area that a Virginia court has to deal with in a divorce is money and assets. Throughout your marriage, you and your spouse acquired things that were worth a lot of money. It is also likely that you acquired debt as well.
Virginia courts need to determine how best to divide debt and money. There are also a lot of factors that go into dividing debt and assets. I discuss these factors in a different post.
What You Should Prepare for your Divorce Lawyer
The best way to save time and money before meeting with your lawyer is to create an outline out of how you believe these two areas should be dealt with. For example, you should create a plan on where the children will be living and how often the other parent gets to see the children. This includes holidays and summer. Also think about what schools you want your children going to and if you have any objections to certain types of medical treatment.
You should also have a list of all the assets and debt that you have that was acquired during the marriage. It may be a good idea to identify a proposed way of dividing these things including who you believe should get certain items and who should take on certain debt. These lists are helpful to lawyers, as it tells them what your ideal outcome is.
Virginia Divorce: Pendente Lite Spousal Support
Find out more about pendente lite spousal support in Virginia, and what you need to know if it comes up.
Divorce is an expensive process. In addition to filing fees and attorneys’ fees, at least one party to a divorce is likely going to have to start paying rent for a new place to live. This transitional process can be hard on people who have become financially dependent on one another.
Pendente lite support, or temporary support, is how Virginia attempts to allow the parties to pay for a lawyer or maintain their standard of living. What is pendente lite support, and how is it determined?
Basics of Pendente Lite Spousal Support
In Virginia, pendente lite support is discretionary. However, most judges in Virginia defer to a set of guidelines.
When a court applies these guidelines, pendente lite support is calculated based upon the gross income of the parties. This means that the court will look at all of the income the parties have available and the needs of the parties while awaiting trial. Income, for spousal support purposes, can include anything from charitable gifts from friends and family or even public benefits such as TANF or food stamps. (Unlike in child support cases.)
The court will often require the parties to produce pay stubs, tax returns, and other documentation to determine financial positions.
Once the court obtains this information, the court will then decide how to proceed. Generally speaking, however, the court will take a specific percentage of the payor’s income and a percentage of the payee’s income. The difference between those amounts is the amount of temporary support that will be paid.
What if I can't afford the amount the court calculates?
The amount of spousal that this calculation produces is simply the presumed amount of support in some Virginia courts. Courts are allowed to go up or down from this amount depending on each party's financial needs. For example; if the payor spouse has a significant amount of debt, and the guideline calculations would put them out of house and home, the court may reduce spousal support.
What does this mean for my divorce?
This is simply a temporary amount that the court uses to make sure both parties can maintain their standard of living until the court has had time to resolve the case. The amount of temporary support the court orders may not be the same as how much you would pay once the divorce is finalized. It is important to keep this in mind if you are dealing with a motion for temporary support, and to negotiate appropriately.
Why you need a lawyer.
A lawyer is essential in pendente lite support proceedings because your lawyer can help make sure you have all of the necessary financial information form both parties to ensure a fair calculation. An attorney can also explore various defenses you may have to that amount, and advocate on your behalf to reduce that amount. If faced with divorce proceedings, make sure you hire a lawyer.
Virginia Divorce: Property Settlement Agreements
What is a Property Settlement Agreement, and what do you need to be aware of prior to signing it?
If you or your spouse is considering a divorce, there are some steps that can be taken now to protect both of your assets and your children. A Property Settlement Agreement is a written document which outlines how marital debt, marital property, and child custody will be addressed while the divorce is pending. This document is vital to have as it can save substantial legal fees from having the court make these decisions. However, there are also dangers to these documents.
What do you need to be aware of when entering into a Property Settlement Agreement?
It is a binding contract.
Virginia law is very clear on this matter, a Property Settlement Agreement is a binding contract. Therefore, you have to be very careful in reviewing the terms of the agreement before signing it. These documents may be drafted by a lawyer, and may include provisions that could prove harmful to you down the line. If there are such provisions in the contract, a court will be reluctant to change the provisions of the contract.
A common example of a dangerous provision relates to spousal support. Virginia law allows a Property Settlement Agreement to state that the amount of support may not be modified. That means, in the event that you lose your job and are obligated to pay support, you will not be able to reduce that amount without a prohibitively expensive court battle.
It requires certain provisions to be valid.
Virginia law requires that a Property Settlement Agreement contain specific provisions to be considered valid. Failure to include these provisions may result in the document being declared invalid by a court of law in the future. If you fail to consult with a lawyer during the drafting process, all of your efforts may prove to have been in vain.
It needs to be exhaustive.
Finally, a Property Settlement Agreement needs to address every aspect of your marital property. It needs to address debt, support, custody, visitation, etc. Failure to include a portion of the marital estate into the document may result in bad consequences such as a contested divorce case or the loss of certain retirement assets. It may even make qualifying for Medicaid more difficult.
Why you need a lawyer.
A lawyer is essential in creating a Property Settlement Agreement. For the reasons stated above, Virginia Law is strict about what can or cannot be included in the document. Furthermore, there may be words in the document that can be harmful to you. Therefore, if you are considering a Property Settlement Agreement, consult a lawyer for review prior to signing.
Virginia Divorce: Dating During Divorce Proceedings
Are you considering dating while your divorce is pending? Think again.
A common question I get in relation to divorce is whether you can date while your divorce proceedings are pending. The term people use is “legal separation,” and they want to know what that means. There are some states in the United States that allow for legal separation and for dating while your divorce is pending? Is Virginia one of those? No.
So how do you protect yourself while your divorce is pending?
How can dating impact your divorce?
As discussed above, there is no such thing as “legal separation” in Virginia. Until you are formally divorced by a court order, Virginia law still considers you to be married. Virginia law also has adultery as a grounds of divorce. If you date while your divorce is still pending, and the other side does not, that fact can be used against you in a number of different ways.
The first is property distribution. Virginia is an equitable distribution state. This means that marital assets and debt are divided based on what is “fair.” The court will take into consideration fault based grounds of divorce when deciding what is fair for property distribution purposes. If one of the parties is engaging in adultery, that can be used to obtain more assets.
The second effect is child custody. Courts in Virginia are reluctant to grant primary custody to a parent who is dating and has that person around the kids. Virginia law has restrictions on such “cohabitation,” and will generally favor the parent who is not dating. Therefore, dating while a divorce is pending can impact custody.
Finally, adultery is still an antiquated crime in Virginia. Dating during the divorce proceedings, while unlikely, may result in criminal proceedings.
How to protect yourself?
There are different types of divorce in Virginia, and one of those types may be able to allow you to start dating. Whether you qualify for this type of divorce will largely depend on the facts of your case. Most attorneys will encourage you to get a separation agreement executed with your ex before dating, and refrain from dating while the divorce is pending.
Speak to a lawyer if you are considering dating during your divorce proceedings. Your lawyer can let you know what your rights are and help prevent an unfair outcome.