Ore Tenus: The Divorce Hearing

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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

Proving Intent to Divorce: Your Corroborating Witness

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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

Presentation: Uncontested Divorce in Virginia

This presentation is a brief overview of how to proceed with an uncontested divorce in Virginia.

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.

From the Client Files: Separate and Not Apart

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The Code of Virginia is very plain about the basic requirements for an uncontested divorce:

On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year.  Va. Code § 20-91(A)(9)(a).

With the onset of the Great Recession and economic sluggishness still lingering thereafter, many divorcing couples are finding it difficult, if not impossible, to find and finance separate living arrangements during the one year time period.  So it is important to know that it is still possible to get a divorce even if both parties live under the same roof.

First, it would be helpful to sign some kind of mutual separation agreement which specifically delineates how the parties will maintain separate lives while sharing a roof.  But even if the parties do not create such an agreement, there are a number of things that they can do to show the court that they have the intention to divorce:

• Hold yourselves as separated to all of your friends, relatives, co-workers, etc.
• Maintain separate and distinct living spaces in the house.
• Do not pay for the other’s necessities, including food, clothing.
• Have absolutely no sexual relations with each other.
• Do not attend religious services or social functions together.
• Prepare and eat meals separately.
• Keep separate finances, including (but not limited to) savings, checking and retirement accounts.
• Do not share household chores — i.e., clean up after yourself only.
• Show evidence that it would be financially difficult or onerous to pay for separate living arrangements.
• Have a someone check in from time to time to corroborate separate living arrangements.

While it is more difficult to get a divorce under these arrangements, it is not impossible.  Just plan ahead, be ready to thoroughly explain your situation to the court and a have corroborating witness who will back up your claims.

Family Law News article with case law.

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.

Easy does it — Virginia’s new divorce decree

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There has been a lot of big news lately — the seemingly endless presidential campaign, dying musicians, the life and times of the Kardashians.  So I may forgive you if you have not heard of this little tidbit from March: it suddenly got a bit easier to get a divorce in Virginia.

In popular culture, divorces always seem to happen in a courtroom setting.  A courtroom divorce is an easy setting for drama, whether it be an episode of Dynasty or a long-running TV show featuring a judge addressed by her first name.  In real life, divorces are messy and time-consuming, and if the parties can avoid court, they are often advised to do so.  To help facilitate this, in March Virginia’s legislature passed and Gov. Robert F. McDonnell signed House Bill 126, which allows uncontested divorce by affidavit and standardizes the required testimony of the moving party and his/her witness.  Circuit courts in several counties and cities had already had this measure in place, but this law makes it uniform throughout the Commonwealth.  If there are absolutely no remaining issues left to be hashed out, the party seeking the divorce may present his/her evidence by sworn affidavit rather than seeking an ore tenus hearing, thus eliminating the need to go and testify in open court, which can be brutal on people’s schedules, especially if they don’t reside in the city or county of jurisdiction.  And there is more potential to streamline a no-fault divorce by a matter of months since there is less need to wait on the court bureaucracy to get your paperwork through the process.

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.

Separation Anxiety: Preparing for Divorce

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Getting a no-fault (uncontested) divorce sounds simple, but in practice it is not an easy undertaking.  Besides likely already being in a fragile emotional state, there are conditions to be met and preparations to be made.

The first set of basic requirements are time and space.  In DC, you need to be living separate and apart from your spouse for at least one year prior to filing your divorce complaint (papers).  Virginia’s time is one year if you have children from the marriage, but only six months if you don’t have kids.  “Separate and apart” means just that — you are not living together as husband and wife — which means (but is not limited to) having separate living arrangements, not going out together for social engagements or worship services, paying separately for expenses and meals,  and (possibly most importantly) having absolutely no sexual relations.  This condition must be corroborated in court through testimony of a witness, who can ideally be a friend who has seen your lives evolve after the initial separation.

Also noteworthy is that in Virginia it is possible to live separate and apart in the marital home, though it is difficult to prove in court proceedings and requires much time, preparation, and cooperation between the parties.

The other main element is the property and settlement agreement (PSA).  If you have any marital property, it should be divided, set in writing, and absolutely agreed to before filing anything with the court.  Oral agreements are not enough — the court will incorporate the PSA into the final divorce decree at the end of the process, so be sure it’s accurate and complete.

Preparing for divorce requires patience and diligence, either of which may be in short supply as emotions run high. While it may seem daunting at the beginning, it is important to follow through all the requirements to the letter, otherwise you risk running into unnecessary delays and undue emotional hardship.

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.

The Real Marriage Revolution

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As of this writing, seven states (CT, IA, NH, MA, NY and VT) and the District of Columbia have laws legalizing same-sex marriage.  Gov. Christine Gregoire just signed a bill legalizing it in Washington, which will start recognizing same-sex unions in June, and Maryland Gov. Martin O’Malley did the same this past week.  Advocates are steadily making inroads, though 29 states prohibit it by constitutional fiat and 12 others through statute, and the Defense of Marriage Act (DOMA), passed in 1996, prohibits the federal government  from recognizing same-sex unions.  Opponents continue to decry it as a threat to the institution of “traditional” marriage. There have been few studies on that subject, and, to be sure, the first state to legalize same-sex marriage (MA) did so only in 2004, but early trends suggest that there have been little or no negative effects on the overall divorce rate.

In 2010, New York made news by becoming the last state to legalize divorce by consent, a.k.a. no-fault or uncontested divorce. Starting with Oklahoma in 1953, each of the other 49 states passed no-fault divorce statutes. Prior to 1953, the only way to get a divorce was showing a court that there were fault grounds to dissolve a marriage, such as abandonment, abuse, adultery or fraud. Absent a real problem (or mutual perjury), it was difficult to end a marriage. But after more states began allowing uncontested divorce in the 1960s, divorce rates started to increase before leveling off by the turn of the century.

One can argue the merits of allowing divorce without fault, whether it be the ease of getting out of unhappy or abusive marriages or curbing institutionalized perjury. The fact remains that divorce rates were widely affected simply by making easier to get one, and that it remains to be seen if the legalization of gay unions will have any effect at all.

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.

Details, details

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Divorce can potentially be one of the most stressful and emotional times of a person’s life.  Even if there are no issues to be worked out between the spouses, ending a marriage is difficult proposition, and ideally it should be done as efficiently and painlessly as possible.  For many people, it’s just a simple division of assets and liabilities.  For others, property can include trust funds, pensions, securities and other complex instruments. And there may also be powers of attorney and wills to worry about on top of everything else.

One of the keys to a smooth divorce is drafting a thorough property settlement agreement (PSA). Be sure to include every single asset and liability, no matter how seemingly insignificant, because any issue can delay proceedings and may require an ultimately unnecessary court appearance or two. Even if you’re going pro se, and if you have the means, have an attorney look over it before signing. Online law firms are growing in number, and many offer low-cost, flat-fee consultation and document review.

In short, make sure the PSA is as detailed as possible. People often complain that lawyers are overly wordy in their language (the so-called “fine print”), but this is to make sure there are no questions about what is in the document. In this case, it could save you time and money.

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.