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Virginia Divorce Questions & Answers
1 Answer | Asked in Divorce for Virginia on
Q: When a couple agree to waive rights to equitable distribution in a divorce agreement, what does that mean in lay terms?

Wording from divorce agreement: "...waive any right to equitable distribution under Section 20-107.3 of the Code of Virginia to the retirement or pension accounts, life insurance..." ALSO, I know what equitable distribution refers to, just not exactly what this phrase refers to in... Read more »

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Apr 1, 2023

In resolving the incidents of marriage upon separation and/or divorce, the spouses have four choices:

1. Do nothing and allow the issues to remain unresolved;

2. Address each item of property as an individual item as necessary, typically according to actual title;

3....
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1 Answer | Asked in Divorce and Family Law for Virginia on
Q: Under what grounds can I reopen a PSA in Virginia?

I have been paying spousal support since 2017, via court order, and do not think that it should continue indefinitely. Was fully divorced in 2019 and the order became part of the PSA. My ex has the ability to work (she held 10 jobs during the marriage) but refuses to or simply does not attempt to... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Mar 31, 2023

There are two bases for spousal support: 1. an award by the court; or 2. a stipulation by the parties. An award by the court may be modified upon a material change in circumstances not anticipated by the parties, or the nonoccurrence of a change anticipated by the parties at the time of the award.... Read more »

0 Answers | Asked in Divorce, Family Law, Child Custody and Child Support for Virginia on
Q: how to terminate a parents parental rights of my almost 7 year old daughter who her father has never seen

he refuses to give me his physical and up to date address

0 Answers | Asked in Divorce and Family Law for Virginia on
Q: Does a spousal support order have to be in the divorce decree?

During the period of separation the spousal support was put into a final order with no details about how long it was to be paid in VA (there was no divorce filed at this time). Four months later after filing for a divorce, an absolute divorce decree was granted in NC. Do I still pay the spousal... Read more »

1 Answer | Asked in Divorce and Family Law for Virginia on
Q: Is 20 yrs a magic # for permanent spousal support in VA or is there little difference if one files divorce after 19 1/2?

62-year-old spouse has been a stay-at-home parent the entire time.

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Mar 9, 2023

There is currently no formula for permanent spousal support, the type awarded upon decreeing a divorce, in Virginia. An award of permanent spousal support, which may be for a fixed term, in a lump sum, or indefinitely until either party dies, or until the payee spouse remarries or cohabits in a... Read more »

1 Answer | Asked in Divorce and Family Law for Virginia on
Q: My wife wants a divorce. I have been in the basement for 8 months. If I sign contracts on a house to move is that ok?

There is no legal agreement in-place. I need to move on and found a house to buy. This would force our current house to go to market and force both of us to find alternate living. She is currently just staying because she is comfortable with me being out of site. Is it a bad legal move to move on... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Mar 2, 2023

In the absence of legal justification, any spouse who leaves the marital residence with the intention to separate permanently risks having the other spouse claim the fault ground of desertion and abandonment in a divorce case. Most divorce lawyers will advise a client not to leave the marital... Read more »

3 Answers | Asked in Divorce, Estate Planning, Family Law and Real Estate Law for Virginia on
Q: Can something you say in an email be the difference between winning and losing a lawsuit?
James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Feb 13, 2023

An e-mail may be admissible in evidence if a party can establish a hearsay exception and authenticate the communication. Hearsay is an out-of-court statement a party wants to introduce into evidence to prove the truth of the matter asserted. If made by a party, an e-mail may qualify as a party... Read more »

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1 Answer | Asked in Divorce for Virginia on
Q: Do you follow the laws of divorce for the state you file in, regardless of where you were married at?
James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Feb 6, 2023

Depending on the circumstances, a divorce is typically filed in either the state where the defendant resides, or the state where the plaintiff (filer) resides. The place of marriage is irrelevant.

Due process requires notice and an opportunity to be heard. Further, if property rights,...
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1 Answer | Asked in Divorce for Virginia on
Q: Hi For the past year I have been bullied and harassed by my wife to agree to her divorce and now i am under duress

My wife filed a false protection order then false claims I broke the protection order and I have text messages from her to our kids that if i sign her papers she will remove everything. I just recieved papers from her lawyer to sign but I do not agree however my wife holds control over me through... Read more »

John Michael Frick
John Michael Frick
answered on Jan 25, 2023

I recommend you not sign or agree to anything until you have retained your own lawyer to advise you.

1 Answer | Asked in Divorce for Virginia on
Q: how do I get a divorce based on adultery
James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Jan 17, 2023

A divorce is initiated by the filing of a Complaint in the appropriate Virginia Circuit Court. A divorce based on fault must include the basic elements of the fault ground that the Plaintiff will rely on, in numbered paragraphs in the Complaint. A party or counsel signing a pleading, such as a... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: Do both parties have to sign a seperation agreement before the seperation begins?
James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Jan 12, 2023

Spouses can enter into enforceable separation agreements in Virginia. The agreement must be in writing and signed by both spouses, or recited in front of a court reporter. A separation agreement is not a requirement for a divorce in Virginia, although it allows a no fault divorce based on a six... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: Divorce when in separate states

If my spouse files for divorce in Virginia but I am about to move to another state, am I able to handle my part in the divorce from that other state. Would I hire a lawyer in Virginia? Would I have to physically appear in court or could my lawyer appear for me? What happens if I cannot afford to... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Dec 24, 2022

Divorces easily fall into one of two categories: contested and uncontested. An uncontested divorce typically proceeds as a no fault divorce based on a signed written separation agreement between the spouses. All the incidents and consequences of the marriage have been addressed: spousal support;... Read more »

2 Answers | Asked in Divorce and Family Law for Virginia on
Q: In VA, 12 mnths of separation is req'd w/ minors before divorce. Do I need notarized separation agreement to prove date?

I know in VA, a legal separation agreement is not always (or ever?) necessary. But we are separating under the same roof which I realize complicates things. We started this beginning of August, and have done everything on the "separation list" that we found in our research (separate... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Nov 17, 2022

While the Virginia Court of Appeals has decided that it is possible for spouses to live separate and apart under the same roof, not all Circuit Court judges readily accept that idea. The idea is more popular in certain areas of the state, such as Northern Virginia, where the costs of housing is... Read more »

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1 Answer | Asked in Divorce and Family Law for Virginia on
Q: My husband lied to the cops to get a epo granting possession of the home. If I get an order on him, who gets to stay?

I have real evidence that I can take to the magistrate and get him arrested for assault. If I was granted a EPO also and possession of the home, which h one of us gets to stay there? Is it the one who was granted it first?

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Nov 11, 2022

A protective order may be issued in three successive steps, each with greater due process protections for the accused. To protect against an immediate harm, a emergency protective order can be issued ex parte by the magistrate or general district court judge on a sworn statement or affidavit,... Read more »

1 Answer | Asked in Divorce and Family Law for Virginia on
Q: My husband has an ego on me and has been granted temporary possession of the home. Can I get possession back?

My husband called the police on me and lied and said I covered his mouth and nose and slammed his head into the wall.

He was granted a epo because my son went along with it. Now my son feels bad he lied for his Dad. He thought I was just going to have to leave the house and that would stop... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Nov 11, 2022

A protective order may be issued in three successive steps, each with greater due process protections for the accused. To protect against an immediate harm, a emergency protective order can be issued ex parte by the magistrate or general district court judge on a sworn statement or affidavit,... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: Does living back together and temporarily reconciling reset the divorce?

I have been separated for 3 years. Extended due to pandemic and custody.

I moved back in August. Does that have any effect on the proceeding if one of us wants to reset everything?

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Nov 10, 2022

The separation required for a no fault divorce in Virginia must be continuous and uninterrupted. The legally-required separation means the parties are no longer living together as husband and wife. At least one of the parties must intend that the separation is permanent, and that intention must... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: post-nupital and property settlement agreement

should we sign with notary together or should wife sign first, separated 15 months in va

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Oct 17, 2022

A prenuptial agreement or marital agreement, variously titled as a separation agreement, post-nuptial agreement, or property settlement agreement, must be in writing and signed by the parties to be enforceable. There are usually notarizations or acknowledgement(s) of the signatures by a... Read more »

1 Answer | Asked in Divorce and Bankruptcy for Virginia on
Q: 2015 my ex was ordered to pay $5K in equitable distribution, but he never paid and was contempt. He since filed Ch. 7.

He filed Ch. 7 in 2017. We live in VA. Can I take him back to court to enforce the order in the divorce decree?

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Oct 5, 2022

A contempt proceeding for an ED violation may or may not be a violation of the automatic stay in bankruptcy. The question is whether the purpose of the proceeding is to extract a private monetary remedy (not allowed) or to uphold the dignity of the court (allowed). Some have cast this as civil v.... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: I filed for divorce but my wife refuses to move out of my house. How can I legally remove her from the house?

I bought my house 5 years ago, we’ve been married for less than a year. She is no where on the house. I am the owner. I will be paying her ½ if the amount paid to principal for the length of the marriage. How can I legally get her to move out if I already filed for divorce. Is there a Set length... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Sep 16, 2022

For various good cause shown, a spouse can ask for exclusive possession of the marital residence as part of the pendente lite relief available in a Virginia divorce case. The public policy of the Commonwealth of Virginia is to promote marriage, not to make divorce easy. Marriage provides a... Read more »

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