Asked in Divorce for Virginia

Q: My parents have been seperated for 40+ years. My father has become ill and I wanted to know how to get them divorced

My mother has not been around my entire life and claimed she has remarried but I dont know how if she still is married legally to my father. I just want them divorced in case my father passes I dont want her entitled to any of my father's assets

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2 Lawyer Answers
Sonja Aoun
Sonja Aoun
Answered
  • Tysons Corner, VA
  • Licensed in Virginia

A: If your father wants to file for divorce, he can do so if he has been a Virginia resident for the past six months. When he files for divorce, if he doesn't know where your mother is, he will need to file an affidavit verifying that he doesn't know her address. He can then request that she be served with the divorce paperwork by publication, which means publishing the information in a local newspaper. If he does know where she is, that process will be a bit easier. He should make an effort to locate her, because it can affect whether any final decision regarding his assets can be overturned by her later on. If your father owned property with your mother while they were married, he will have to ask the court to divide up that property. If she doesn't show up for the hearing, then the court will most likely just give it to him.

If your father does not have a will or trust in place already, he has the opportunity to direct whether or not she would receive any assets from him. If they are not divorced yet, she may still be able to claim a certain share of the assets. But if the divorce is final, then she cannot challenge his will.

I also suggest talking to your father about titling assets in a way that avoids probate, such as "transfer on death" bank accounts, and making sure any retirement accounts or life insurance policies don't list her as a beneficiary.

In order to fully answer your question, an attorney would need the specific details of your case, which should be discussed in a confidential setting. There is a lot that can be done to help him out, and most attorneys are able to work with clients who are ill and need special accommodations.

James H. Wilson Jr.
James H. Wilson Jr.
PREMIUM
Answered
  • Glen Allen, VA
  • Licensed in Virginia

A: If a married person marries another person not his or her spouse, the marriage is void as bigamous. This means the original marriage is still valid. Under Virginia Code Section 64.2-308, a spouse who willfully deserts and abandons his or her spouse loses all statutory rights. If you suspect his may be the case, it might be will to gather all possible evidence and consider all possible testimony, including your father's while he is still alive. A lawyer can discuss this with you and him.

Marriage is a somewhat mysterious relationship. Sometimes it is difficult to figure out why a spouse might do something or not do something. Some people accept long distance or dead marriages, choosing to live alone rather than divorce or remarry. Initiating a divorce is best left to the spouse upon his or her decision, rather than at the urging of a well-intentioned family member or friend.

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