Last updated on October 22nd, 2018
If you are currently involved in a family law case in Virginia, chances are that you have, or will soon, encounter several words and phrases that you’ve never encountered before. These new terms may sound weird and foreign, but they have important meanings and implications for you and your case.
For these reasons, you’ll want to have a solid grasp of these words’ meanings in order to be able to effectively talk to your Virginia divorce lawyer.
This article will review some of these important and common words and phrases, and hopefully provide you with a good knowledge base, to make you a more informed client.
Alternative Dispute Resolution (ADR)
Not every dispute that a couple has needs to, nor should, be litigated. Alternative dispute resolution (“ADR”) refers to a set of procedures through which parties can resolve their conflicts, without needing to go through the expensive and time consuming process of taking their case to court.
ADR methods include arbitration and mediation. These methods are highly valuable when the parties to the dispute hope to preserve their relationship going forward.
Because adversarial litigation is avoided, the ADR process is typically much less contentious. A prime example is divorcing parents, who hope to continue to serve as effective co-parents to their children, even though their marriage is dissolving.
An annulment is the voiding of a defective marriage. It’s as if the marriage never happened.
Voidable marriages are caused by defects that are less serious than those causing a void marriage. These defects include one of the parties being underage, or a marriage that is a sham.
An annulment is distinct from a divorce, as the latter is the dissolution of an otherwise valid marriage, while an annulment dissolves a marriage that was never valid in the first place.
Child Support Guidelines
When parents divorce, both parties have an obligation to continue to support their children, though child support is only paid by the noncustodial parent.
The child support guidelines are the method by which the noncustodial parent’s support obligations are determined.
The guidelines are essentially a chart that takes into account the number of children the couple has and the noncustodial parent’s income.
Based on plugging these factors into the grid, the parent’s support obligation can be determined. The more income the parent makes, the greater that parent’s obligation.
Unlike spousal support, the divorcing parties cannot waive child support, though they may opt for a greater support amount than that for which the guidelines would call for.
In fault-based divorces, one of the parties may raise one of several defenses to the divorce action. One such defense is condonation.
Condonation is a conditional forgiveness of a marital fault, with the understanding that the fault will not occur again.
If it does, the defense is nullified, and the fault ground is revived.
The party giving the forgiveness needs to know about all the faults involved: for example, forgiving one adulterous act would not be condonation of second and third acts that were not disclosed.
Contempt of Court
Contempt occurs when one of the parties to a case disobeys or violates a court’s order. Child (and spousal) support decrees may be enforced by contempt proceedings.
The state’s contempt powers may be statutory, or based on the court’s equitable powers to enforce its orders.
Contempt can be civil or criminal.
It is possible for a party to “purge” himself of contempt and get out of jail, by making back payments on missed child support payments.
If a PSA is incorporated into a divorce decree, the court may use its contempt powers to enforce the PSA.
Divorce, Contested and Uncontested
In Virginia, divorce can be either contested or uncontested.
Uncontested divorces are a modern development, and are not based on a spouse’s committing a fault. Rather, they are based on the parties living “separate and apart” for the statutorily prescribed length of time—either six months or a year, depending on whether the couple has minor children and a PSA.
In contrast, contested divorces in Virginia are based on one of the traditional marital fault grounds.
These include adultery, abandonment, cruelty, and buggery. This type of divorce involves an adversarial litigation process, and is generally much less amicable, and more expensive.
When a couple divorces, one of the most significant tasks facing the court will be the division of the couple’s property.
In Virginia, this division is done through equitable distribution, in which the court takes into account a number of statutory factors, and divides the couple’s property in the manner that the court decides is the most equitable or fair.
The division is often 50/50, though it need not be, and the judge may divide it in any way he sees fit.
Only assets classified as “marital” property are subject to equitable distribution, while a spouse’s “separate” property is not. Equitable distribution can be avoided by a couple’s disposing of their assets in a PSA, which allows them to divide their assets themselves, and not be at the mercy of the judge’s discretion.
Property Settlement Agreement (“PSA”)
A property settlement agreement, or PSA, is a legal agreement in which a divorcing couple discusses and resolves various important issues created by their separation.
These include the topics of child and spousal support, visitation rights, and separation of property and debts.
Using a PSA is beneficial, in that it gives the couple more autonomy and control over important issues, and it decreases the amount of time that the spouses must live separate and apart before petitioning for a no-fault divorce.
Generally, a PSA expedites and lowers the expense of the divorce process, as fewer issues need to be litigated, and it’s the result of the parties cooperating to reach mutually beneficial resolutions of their problems.
Also known as alimony, spousal support is the amount of money that one spouse is ordered to, or agrees to, pay the other upon divorce.
Unlike child support, spousal support is not mandatory, and can be waived.
If one spouse makes disproportionately more than the other, an amount of support may be ordered.
Generally, support obligations continue for a specified period of time, or until the receiving spouse remarries, or some other agreed upon time.
Tenancy by the Entirety
A tenancy by the entirety is a form of concurrent property ownership only available to married couples. It is a way of protecting a married couple’s property, both from each other and from creditors.
Each spouse holds an equal, undivided interest during the lifetime of both parties.
It includes a right of survivorship, giving the surviving spouse sole ownership of all the property upon the death of a spouse.
Upon divorce, property held in a tenancy by the entirety becomes a tenancy in common.
The vocabulary used by Virginia divorce lawyers and courts can be confusing to the uninitiated.
As a consumer of legal services, it’s important that you have a basic understanding of the words and phrases that the legal community uses.
This will insure that you are able to effectively communicate with your divorce lawyer, as you both work towards reaching be most beneficial outcome in your case.