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Presentation: Pendente Lite Orders in Virginia


This is a presentation on pendente lite (or temporary) orders in Virginia, which can be obtained while family law cases are being litigated.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Ore Tenus: The Divorce Hearing


"the original tweeters" by author

“the original tweeters” by author

You have  negotiated all of the support and child custody issues, divided all of your property to each spouse’s satisfaction, and filed all of the necessary paperwork with the court.  You are now at the end of the process, which in Virginia is called the ore tenus hearing.

In Virginia, many uncontested divorces can now be completed without ever setting foot in a courtroom.  However, there are situations where a hearing is necessary (for example, if the defendant spouse is absent and cannot be found).  Assuming there are no issues to be decided, the plaintiff can request the hearing any time after the defendant answers the complaint.

At an ore tenus hearing, the judge listens to testimony from the party asking for divorce and his/her corroborating fact witness.  These questions cover how long the parties have been living separate and apart without cohabitation and without interruption, whether there is intent to remain separate and apart, whether there are support/custody and property issues still in dispute, and if there is any hope for reconciliation.

If there are no issues in dispute, the hearing itself can tend to be less formal than the usual proceeding.  The corroborating witness may be allowed to be present for the petitioner’s testimony, and the questions are routine.  The entire proceeding usually lasts around 10 to 15 minutes, and when it is over and the judge signs the decree and the parties are officially divorced.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

“Partial” Divorce in Virginia: “Bed and Board”


"birds on a vane" by author

“birds on a vane” by author

In a previous post, I wrote that there is no such status as “legally separated” in Virginia.  While this is true, you need to know that there is an intermediate status known as divorce a mensa et thoro, or “divorce from bed and board.”

There are two grounds for divorce from bed and board: cruelty and reasonable apprehension of bodily hurt, or willful desertion or abandonment.  The effect of such a decree is separation of spouses and their respective property, but unlike absolute divorce neither party is allowed to remarry (Va. Code § 20-116). 

The parties may seek an absolute divorce one year after date of separation.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Proving Intent to Divorce: Your Corroborating Witness


"Wood Duck, P.I." by author

“Wood Duck, P.I.” by author

In the age of no-fault divorce, it is relatively easy to end a marriage if both sides consent and settle their issues before filing.  But even if both spouses really, really, really want to split up,  someone besides the separating parties must vouch for their intent to divorce under oath and in open court (note: Virginia allows for divorce by affidavit under certain circumstances; DC does not at this time).

Your corroborating witness can be anyone you know — a relative, friend, colleague.  The court requires the witness to answer a series of questions demonstrating his/her personal knowledge of the facts and circumstances surrounding the plaintiff’s separation from his/her spouse and whether the couple has remained separate and apart throughout the required time prior to filing the divorce action.

Virginia’s special statewide rules allow both the plaintiff and corroborating witness to answer their questions by written notarized affidavit if  there are no outstanding issues to be determined by a judge.

The following are sample witness questions taken from a divorce guide provided by the Fairfax County Circuit Court:

1. State your full name and address please?
2. Are you acquainted with the Plaintiff in this action?
3. What is your relationship?
4. How long have you known him/her?
5. Does the Plaintiff currently reside at (ADDRESS)?
6. For at least six months prior to filing the Complaint for Divorce, please state all addresses where the Plaintiff has resided. (Note: if it is the other party upon whom jurisdiction is grounded, then ask this question regarding the residency and domicile of the other party.)
7. So for at least six months prior to the filing of the Complaint for Divorce on (DATE), was he/she a bona fide resident and domiciliary of the Commonwealth of Virginia? (Note: if it is the other party upon whom jurisdiction is grounded, then ask this question regarding the residency and domicile of the other party.)
8. Is the Plaintiff currently married to (spouse’s name)?
9. Have you met the Defendant? Would you know him/her by sight?
10. Are both Mr. and Mrs. (NAME) over the age of eighteen?
11. Have either of them been active duty members of the Armed Forces of the United States or its allies at any time during the pendency of this suit?
12. Is it your understanding that they were married on (Date) in (Place)?
13. Were there any children born or adopted of their marriage? (IF YES, ASK NAMES AND AGES)
14. Did they separate on or about (Date)?
15. At the time of the separation, was it the intent of at least one of them that it would be a permanent separation that would ultimately lead to a divorce?
16. Has that intent continued on the part of at least one of them up until the present date?
17. How did you become aware of the separation?
18. Have you had an opportunity to visit in the Plaintiff’s or Defendant’s home since (Date of Separation)?
19. How often have you visited with the Plaintiff/Defendant in his/her home?
20. In any of your visits to his/her home, have you ever seen anything which would indicate to you that his/her spouse was continuing to live there after (Date of Separation)?
21. How frequently do you speak with the Plaintiff/Defendant either by telephone or in person?
22. In any of your conversations with him/her, have you ever heard anything which would indicate to you that after the (Date of Separation), he/she had reconciled with his wife/her husband and resumed living together with her/him?
23. Do you believe you have a close enough relationship with the Plaintiff/Defendant that if he/she had reconciled with his wife/her husband and resumed living with her/him, that you would have been aware of that fact?
24. So, to your knowledge, have they lived separate and apart without any cohabitation and without interruption from (Date of Separation) up to the present date?
25. Do you believe there is any hope or probability of a reconciliation between them?

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

What can be included in spousal support?


"the provider" by author

“the provider” by author

When a marriage ends, there is always the possibility of a significant decrease of income for each party, especially if one of the parties made a lot more money than the other.  The purpose of spousal support (alimony) is to help alleviate the sudden reduction in income for the more disadvantaged party.

Spousal support can be negotiated between the parties or determined by a judge, and it is usually meant to be temporary, ending after a specified term, remarriage by the party receiving payments, or the death of either spouse.  However, a judge can establish permanent support under certain circumstances, such as the supported spouse’s inability to become self-supporting.

If the parties cannot reach an agreement for spousal support, the judge is required to take the following factors into consideration, as listed in Va. Code § 20-107.1:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under § 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;

12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and

13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Divorce: Property Distribution


"adult food fight" by author

“adult food fight” by author

Property division is one of the most contentious elements of a divorce proceeding.  If the parties cannot settle their differences out of court, the judge hears arguments and determines how marital property will be distributed upon the final divorce decree.  The state’s overriding property distribution laws determine how much leeway a judge has in this decision.

Ten states (Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) use the community property doctrine, which means all marital property is divided 50-50 regardless of circumstances.  Each spouse also maintains their own claims on separate property.  The remaining states (including Virginia) and the District of Columbia use equitable distribution, which gives a judge much more discretion to determine what is a fair division of property.  The final decision does not have to be an even 50-50 split, but what is fair to both parties.  Various court cases over the years have given judges some guidance as to what is considered “fair,” but generally speaking, equitable distribution statutes allow judges to consider the facts and be creative.  We will discuss some of these cases in a later post.

Obviously, the best way to deal with property issues is for the parties to settle, saving you the contentiousness and expense of a trial.  And it would be more advangeous to have a pre-marital (pre-nuptial) agreement in place.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Collaborative Divorce: An Introduction


"my talons are sharp" by author

“my talons are sharp” by author

In popular culture, divorce depicted as an ugly adversarial process with estranged spouses always dramatically at each other’s throats.  Real life is usually never as “exciting” as it is on television, but it is really not that far off.  Divorce can be an ugly adversarial process that takes a lot of time, money and emotional cost.

Back in 1990, a Minneapolis lawyer named Stuart Webb founded the collaborative divorce model.  The process of collaborative divorce is to get both spouses and their attorneys in the same room and work together to hammer out an agreement without going to court.  Instead of the secrecy and strategy of the traditional adversarial setting of a divorce trial, the parties would lay everything on the table and figure out the best way to move forward in as cooperative an atmosphere as possible.

Collaborative divorce uses a different financial model than the traditional adversarial model.  Instead of filing court pleadings and hiring experts as the process drags on, the spouses decide from the beginning who the attorneys, mental health professionals who will act as advisors, and the neutral financial analyst will be before beginning negotiations.  As a result, much of the cost of the divorce will be borne earlier in the process rather than escalating as the trial gets closer. 

Collaborative divorce is a form of alternate dispute resolution, but it is not mediation, which is generally done in conjunction with a traditional adversarial process. 

Further reading: History of Collaborative Divorce from collaborativedivorce.net.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.