If you file a divorce case in the Fairfax County Circuit Court (and this certainly is not unique to Fairfax), you might be surprised to learn that your final trial date will probably be between six months and one year from now. If you have children, and you and your spouse do not agree upon custody and/or visitation, that is a painfully long time to wait. What happens during the next year? If you moved out of the marital home and your spouse will not let you see the children, or if your spouse is dictating an unacceptable visitation schedule, or if you want custody, you will want the court to order a temporary custody/visitation schedule which will last until the final trial date (known as a "Pendente Lite" Order"). Unfortunately, you probably will not get such an Order in Fairfax.
Every Friday in the Fairfax County Circuit Court is known as "Motions Day." On Fridays the judges rule upon motions that can be argued by the lawyers in thirty minutes or less. However, Fairfax has operated under a long-standing policy that, absent a true emergency or extraordinary circumstances (it is near impossible to prove an emergency), the court will not make a custody determination or establish a visitation schedule on a Motions Day or at any other time prior to the final trial date. The court partly bases this rule upon the notion that the court will allow the parties to schedule a final custody and visitation trial within two to four months of the filing of the case (and thus the court does not want multiple custody/visitation motions clogging up its docket). In reality, however, it can be very difficult to schedule a trial within two to four months for numerous reasons, including: the court’s docket is extremely crowded and trial dates disappear fast; both sides may need time to properly prepare for trial, including issuing discovery and taking depositions; and if opposing counsel believes that the passage of time will benefit his client, he will attempt to schedule the trial as far into the future as possible.
This policy creates what I refer to as "no-man’s land" where there are no rules and each parent has an equal right to custody. If there is no court order governing custody or visitation, then each parent can refuse to give the children to the other parent. Such behavior leads to unfortunate situations, such as parents arriving at school early in an attempt to beat the other parent there to pick-up the children, heated arguments in front of the children, and the police being called. In practice, this policy tends to be harshest on fathers who want primary physical custody. Continuity and stability is important for children. If 3-6 months pass wherein the children are living primarily with the mother, the father’s chances of winning custody reduce dramatically, especially if the children are doing ok in mother’s care. Fathers are thus left with a very difficult decision of whether to refuse to give the children back to the Mother, which often leads to the above-noted altercations.
The first hour with your attorney is often the most valuable time your Family Law attorney will spend with you. Your attorney will gather the facts of your case, identify the issues that need to be addressed immediately and those that are not as urgent but still need attention. If you provide enough documents and information about the facts in your case, your attorney should be able to give you a fair assessment of your marital estate, the approximate level of support if the facts warrant it and tell you an approximate mid point for settling or splitting the marital estate.
There are facts that can make finding the mid-point more complex. For example, if one spouse contributed significant money they earned prior to the marriage to a major purchase, such as the marital residence, the contributing spouse gets a greater portion of the equity pursuant to the equitable distribution statute. As you can see, your attorney is better equipped to give you a more accurate settling point if you provide as much of the information as possible.
Virginia has a no-fault means for getting divorced but the commonwealth also still has fault grounds for divorce, such as: adultery, abandonment, cruelty and abuse. A fault ground divorce must be proven not just alleged. To prove adultery, you will need to provide pictures or witness testimony to a court. If you believe your spouse has committed one of Virginia’s recognized faults as grounds for divorce, bring whatever you have that demonstrates that so your attorney can evaluate that aspect of your case.
To assure that your meeting with your attorney is productive, you will need to bring certain items so that your attorney has the necessary information to make a meaningful assessment and leave you armed with the information you need to make decisions.
The following is a list of items that will assist your attorney in assessing your case:
1. Full name of both parties
2. Current home addresses and telephone numbers of both parties**
3. Names of employers, employers addresses and telephone numbers**
4. Dates of birth, places of birth*
5. Social Security Numbers, driver’s license numbers for both parties**
6. Your private e-mail address
7. Levels of education of each party*
8. Health insurance information, including policy name and number**
9. Date of marriage, place of marriage (city/county/state)*
10. Date of separation*
11. Address of former marital home*
12. Your children’s names, dates of birth and last 4 digits of their social security #**
13. List of all assets acquired from date of marriage to date of separation
14. A copy of the latest statements of all accounts, banking, retirement, 401K, etc.
15. Information about any real estate owned, ie. HUD1 or purchase price, date,
mortgage payoff, monthly mortgage amount
16. A copy of the latest debt or credit card statements for all debt
17. Any agreed-upon terms of separation or distribution of property
18. Any agreement on custody or visitation arrangements
19. A list of the basic household expenses each month
20. A copy of ALL pleadings and correspondence in your case
* Items required to be sent to Richmond, VA, for statistical recording in all divorces.
**Items required or any support order filed in court.
You do not need a written agreement in Virginia to establish the fact that you and your spouse are separated. One of the grounds of divorce in Virginia is living separate and apart for 12 months (6 months if you do not have minor children and if you have a signed agreement fully resolving all issues arising out of your marriage). Whether or not you are separated is purely a factual issue that the court will determine. To be separated, two factors need to coincide: (1) physical separation; and (2) one of the spouses must form the intention to remain permanently living separate and apart.
The method by which you prove to the court that you and your spouse are separated depends upon whether you settle your case prior to trial or actually have a trial. If your case does not settle and you proceed to trial, you will testify to the facts that you and your spouse were physically separated and one of you formed the intention to permanently remain separated. Virginia law requires that you have “third-party corroboration;” thus a friend, neighbor, or relative will need to come to court to testify and corroborate that you and your spouse were truly separated.
If, however, you settle your case prior to trial, then you have two options: (1) you can still go to court with your witness and present testimony (often called an “ore tenus” hearing), or (2) you can conduct what is called a “divorce deposition” or a “no-fault deposition” that takes place in the attorney’s office. A court reporter is present and I ask both you and your witness the necessary questions to establish that you are separated. The court reporter then transcribes the testimony, and the transcript is mailed to the court. Under this approach, you do not need to appear in court to finalize the divorce. Typically neither the other spouse nor his/her lawyer attends the deposition, which only lasts approximately 15 minutes.