What are my options in proceeding with a resolution of my family law matter?
There are several processes available to parties who need assistance in resolving legal issues relating to their family. It is helpful to consider one’s goals, interests and concerns when evaluating the options and selecting a process that is best suited to the situation. Because everyone’s situation is unique, it may be useful to have a consultation with an attorney with knowledge and experience about the different options.
A good consult allows enough time for the attorney to obtain a thorough factual history and to get a sense of what the client’s goals are. The attorney can then help the client evaluate the options and develop a plan for how to proceed.
Is it mandatory to have an attorney?
No, however parties should be cautious about drafting their own legal documentation. There may be content or verbiage needed in order to process papers smoothly with the courts. Furthermore, there may be issues that are not properly addressed which may adversely affect the interests of one or both parties or the children. The goal should be to identify needs and use the time of professionals efficiently to meet those needs.
What is the traditional litigation approach?
When either party files a pleading in court that commences a case and requests court intervention. The court then manages the case by setting deadlines, discovery cut off dates and trial dates.
Can the matter just be resolved by lawyers?
Possibly. Some attorneys believe in filing litigation papers first and then possibly negotiating. Sometimes cases are settled on the courthouse steps. Some attorneys will try to settle first with litigation as a last resort. Attorneys have an ethical obligation to inform clients of the various dispute resolution procedures available to the clients. Cases that are not legally complex or emotionally complex can readily be resolved by reasonable attorneys or in mediation.
The challenge is in identifying in advance when a case is not emotionally or legally complex. There is also the challenge of having the parties retain two attorneys who are able to work well in resolving the matter and in helping the parties stay reasonable throughout the negotiation.
When can I file for divorce?
In order to be able to file for divorce in Virginia, the pleading must choose from one of the grounds for divorce enumerated in the Code of Virginia. The Court must also have jurisdiction to decide the issues.
Do I have to allege fault?
There is a no-fault ground which involves living separate and apart without cohabitation as husband and wife for a requisite period of time. One should obtain the advice of counsel to get advice regarding how the facts of their individual case apply to the grounds for divorce in the statute and the decision of whether and when to file for divorce.
What will my divorce cost?
The cost really varies. It can depend on how legally and emotionally complex the case is and also on how far apart the parties are and whether they are able to compromise and be creative. One way to minimize cost and maximize the use of the lawyers time is for family members to work with counselors and divorce coaches to work through the emotional stages of divorce. If the family is not going to stay together, the mental health specialists can assist the parties in looking forward, setting realistic goals, and expressing their interests in a manageable and productive manner. In addition, a financial specialist can be used to assist with gathering financial information and documentation, projected budgets, tax input, etc.
What is an uncontested divorce?
If the parties have a settlement agreement that is signed by both parties and resolves all issues relating to their marriage and they agree that is to be incorporated into a court order, then there is nothing further for the court to decide (other than a change in marital status from married to divorced).
Can I switch processes?
Yes, however once litigation has commenced, there may be court deadlines that one cannot avoid/control.
What is the best way to get started?
Obtain legal consultation with an attorney who has knowledge and experience in the various processes; work with a mental health specialist to assist with emotions and communications, and how to protect the interests of the children involved; and work with a financial professional to pull together financial information.