What requirements should I know for a Virginia divorce?

Whether you are considering a divorce, are preparing to file for divorce, or are facing divorce papers, it’s important to know the basic requirements for a Virginia divorce. Because the divorce process is complicated and because your parental and financial rights hang in the balance, working closely with an experienced Fairfax family law attorney is the surest path forward.

Filing for Divorce in Virginia

Virginia divorces are filed in circuit courts, and in order to file, either you or your spouse must have been a resident of the state for at least six months. The separation requirement depends upon whether or not you and your divorcing spouse share children, and it breaks down as follows:

• If you and your divorcing spouse do not have minor children, you cannot file until after you’ve been separated for at least six months and have completed a written property settlement agreement.
• If you and your divorcing spouse do not have minor children, you cannot file until after you’ve been separated for at least one year.

Service

The spouse who files for divorce must have the other served with the divorce papers, and there are three basic methods for doing so, including:

• If your spouse lives in Virginia, he or she can be served through the Office of the Sheriff.
• If your spouse does not live in Virginia, you’ll need to make arrangements to have him or her served.
• If your spouse agrees to accept service of your divorce papers, you can mail the divorce documents to him or her directly – or he or she can accept service through the Circuit Court Civil Intake Division.

The Separation Requirement

The Separation requirement in Virginia is generally achieved when one spouse moves out of the marital home, but the state also recognizes couples who live separate and apart while remaining in the same home. The guidelines for accomplishing this level of separation, however, are specific.

There is also a requirement of intent, which means that at least one of you must have decided that your marriage is over and must have voiced this intention to the other. In order to establish that you have reached your separation time requirement, it’s advisable to establish one’s intention of divorcing – as of a specific date – in writing.

Fault-Based vs. No-Fault Divorce

Virginia offers both fault-based and no-fault divorces. The grounds for fault-based divorces in the state include:

• Adultery
• Confinement that lasts longer than one year
• Felony conviction
• Desertion
• Cruelty

Virginia is one of the only states in the nation that requires third-party corroboration for fault-based divorces (and only recently dropped the requirement for no-fault divorces). The matter of fault must be proven in fault-based divorces, but when granted, it can affect how the divorce terms are resolved.

No-fault divorces are a more straightforward process in which neither spouse blames the other for the dissolution of the marriage.

Contact an Experienced Fairfax Family Law Attorney Near You

The best divorce attorneys at Curran Moher Weis in Fairfax, Virginia, focus their practice on skillfully protecting the parental and financial rights of clients like you – throughout the divorce process. Your case is important, so please don’t wait to contact or call us at (571) 328-5020 for more information today.

What To Know When Modifying Spousal Support

Spousal support – or alimony – is less common in Virginia divorces than it once was, but it can play an important role for spouses who are left without the financial ability to support themselves upon divorce. The State of Virginia recognizes that life’s circumstances sometimes change and that modifications of divorce terms, including spousal support, are sometimes necessary.

If you’re in a situation in which you believe a spousal support modification is in order – or if your ex-spouse is seeking a modification – it’s time to consult with an experienced Fairfax divorce attorney.

Specifications

In the State of Virginia, there are specific guidelines for when a party can request a spousal support modification. If there is sufficient reason for doing so, either spouse can request that the amount of spousal support is increased or decreased, that the duration be extended or abbreviated, or that the support is ended altogether – unless the original order specifically states that it is not modifiable.

The Basis for Modifications

Virginia courts can terminate spousal support for any of the following primary reasons:

1. The recipient remarries – in which case, he or she is required by law to inform the payor
2. Either party dies (unless stipulated otherwise)
3. The recipient cohabitates with someone else in a relationship that is analogous to marriage for a year or more (unless stipulated otherwise or deemed unconscionable, which is rare)

Reasons the court may increase or decrease the amount of spousal support – or alter its duration – include:

1. Either party – or both parties – experienced a change in circumstances that was not anticipated at the time the support was determined.
2. An event that the court expected to happen, which would have changed one or both parties’ circumstances, failed to occur.

When the Matter of Modification Is Addressed in the Terms

When the original divorce terms themselves stipulate that spousal support modifications can’t be made, the court lacks the jurisdiction to modify the matter. If the divorce decree, however, does not address the matter of spousal support modifications (or stipulates when modifications can be addressed), the court has the authority to make modifications in accordance with whatever parameters are set forth (if any).

The Court’s Stance

When the court addresses the matter of spousal support modifications, it generally explores each party’s overall financial situation – in terms of their current incomes and their reasonable monthly expenses. Spousal support is intended to strike a balance between each spouse’s income in relation to his or her reasonable expenses, and if either ex’s financial circumstances – or both exes’ financial circumstances – have changed significantly, the court may determine that a spousal support modification is in order.

An Experienced Fairfax Divorce Lawyer Can Help

If you need a spousal support modification – or your ex is seeking one – the best divorce attorneys from Curran Moher Weis in Fairfax, Virginia, have an abundance of experience successfully guiding challenging cases like yours toward favorable resolutions that support our client’s best interests. We’re here for you, so please don’t hesitate to contact us online or call us at (571) 328-5020 for more information today.

How to Get a Divorce in Virginia

The 6 Steps To Prepare Yourself For a Divorce

1. Don’t wait to protect yourself! Know your rights early.

Clients often come to see me in the early stages of separation and divorce. Sometimes a client is just looking to know “what if” scenarios if one of them decides to divorce.  These clients almost always leave saying something like “wow, I never knew that – thank goodness I met with you,” or “I will definitely take the steps you recommended if we decide to separate.”  I have also had clients come to me months or even a year or more after they or their spouse made the decision to divorce.  Sometimes that delay has put them in a bad position as they have made decisions I would have cautioned them against had they met with me sooner.  If you are considering separation or divorce (or you think your spouse is), speak with an experienced attorney as soon as you can.  There are almost certainly things you can do to put yourself in a better situation when it comes time to divorce.  These may include dividing bank accounts, opening new bank accounts, collecting information and documentation on your spouse’s financial and personal situation, and a whole host of other things.

2. Be prepared when you meet with an attorney.

There are several things you can do to maximize your first meeting with an attorney:

• Create a list or spreadsheet of the assets and debts you know exist. Sometimes people don’t have all this information and that’s fine, but having a list of what you do know about is often very helpful.  Be sure to let your attorney know if you believe your spouse may be hiding assets, or has been keeping you in the dark about what they have;
• Prepare a list of questions you have. The attorney you meet with should be able to answer your questions at the initial consultation, or if a question cannot be answered at that time, explain why that is;
• Determine what your priorities are and communicate them. Also, give thought to what you would like your post-divorce life to look like.  Do you intend to relocate?  Do you see yourself as being the primarily caretaker of the children, or more of a shared parenting arrangement?  Do you want to stay in the marital residence or have it sold?  Do you expect to retire soon, or make an employment change, like starting a business?

3. Live separately.

In most circumstances you and your spouse must live separately for one year before either of you can apply to the court for a divorce.  Separation generally means one of two things: 1) that someone moves out of a shared residence and either or both parties have the intent to pursue a divorce; or 2) the parties live separately in the same residence and either or both parties have the intent to pursue a divorce.  Moving out is a clear demarcation for separation, but living separately in the same residence can be more challenging.  If you are considering living separately under the same roof, you can see our checklist of things you should be doing (if possible) to ensure that you truly are living separately here: https://www.curranmoher.com/blog/2017/02/02/in-house-separation-virginia/

4. Get important things out of the house.

If there are any valuables or sentimental items that you would be very upset to lose, it is generally a good idea to get them out of the house.  Store them at a trusted friend or relative’s house, or in a storage facility.  You may also want to download copies of family photos and videos onto a cloud service or external hard drive.

5. Know that the date of separation is the date of financial separation and act accordingly.

In Virginia, the date of separation is the date of financial separation.  Everything that is earned before the date of separation is presumed to marital property.  Every debt that is incurred before the date of separation is presumed to be a marital debt.  Conversely, after the date of separation all income earned is presumed to be the separate property of the party who earned it, and all debt is presumed to be the separate debt of the party who incurred it.  What does this mean in the real world?  It means that in most cases, it will be a good idea for you to open new credit cards and bank accounts after the date of separation to keep your separate property separate, and marital property marital.  Consult with an attorney on how best to use the accounts created.

6. Consider the process you want to use.

In Virginia besides litigating in court, there are several processes you can use to get from a separation to a completed divorce.  They are negotiation, mediation, and Collaborative Law, and information about them can be found here:  https://www.curranmoher.com/blog/2020/04/17/divorce-without-court-options-for-a-less-cumbersome-stressful-process/.  It would be a good idea to review these options and discuss with your attorney which process option you believe may best fit your situation.

When you’re considering separation and divorce, it can be a challenge just figuring out where to start!  Fortunately, at Curran Moher Weis, we have the experience and expertise to help you navigate these waters.

Behavioral Economics and Its Impact on Divorce Negotiations

By Steven Goldman, Esq.

Stemming from my background in finance and business, combined with an interest in psychology, I have always been enamored by the field of Behavioral Economics – the study of psychology as it relates to economic decision-making. Over time, reading and studying Behavioral Economics became a hobby of mine and something I would apply in daily financial decisions.

I eventually began to think about how the field of Behavioral Economics, and understanding how people make decisions generally, could help me in my practice as a family law and divorce attorney. After reading several books written by pioneers in the field (Thinking Fast and Slow, Daniel Kahneman; Misbehaving, Richard Thaler; Predictably Irrational, Dan Ariely; etc.) and wanting to dive further into the subject matter, I enrolled in – and recently completed – a Behavioral Finance course through the University of Chicago.

In this blog, I will provide a few lessons about how Behavioral Economics can be utilized in matters of divorce and family law.

First, a primer on Behavioral Economics. An online search will tell you that the average adult makes more than 35,000 decisions per day, with 90% of those decisions made subconsciously. Daniel Kahneman describes two systems for decision-making: System 1, which is instinctual, automatic, and does not require effortful thought processes (e.g., driving, eating); and System 2, which is deliberate, controlled, and requires significant mental energy (e.g., mathematical calculations, deciding on an expensive purchase such as a house or car).

To conserve energy, our minds complete as many decisions with System 1 processing as possible.  Because System 1 acts without deep thought, it relies on heuristics, or biases, which act as shortcuts to influence our decision-making processes. Some examples of biases that I will show in relation to divorce negotiations are as follows:

• Status Quo
• Loss Aversion
• Anchoring
• Endowment Effect
• Confirmation
• Overconfidence

It is impossible to ignore or eliminate our biases, but we can recognize the way they operate and use that to think more clearly with System 2. We can also use what is called Choice Architecture – designing choices and options in ways that influence the decision-making process.

Example 1 – Custody Negotiations

Custody issues are always one of the most difficult to negotiate. One reason is that both parties are strongly impacted by their Status Quo biases. Prior to a separation, each parent is accustomed to living in the same home as the child and now there is a necessary adjustment to two households. Any schedule, regardless of the split, will feel like a loss of time. Loss Aversion is the principle that drives people to protect and preserve what they already have. In this scenario, the entire family used to live in the same home and both parents will feel a strong sense of loss as soon as the child’s time is divided. Parents often have a hard time negotiating a parenting time schedule because it all feels like a loss of time and, therefore, the negotiation will feel like a loss regardless of the outcome.

One way that I support clients through Loss Aversion is to redirect the conversation around the issue of time. Working with a Divorce Coach or Child Specialist, as we often do in the Collaborative Divorce process, provides the parties with an experienced mental health professional to focus on the benefits of co-parenting. An expert is there to guide the parents and explain that a child will benefit from positive co-parenting and that the co-parenting relationship will have a greater impact on a child than a particular schedule. The schedule will still be an important component to the negotiation, but it can be viewed as one piece of the puzzle to address the child’s needs.

Example 2 – Expectations and Financial Negotiations

One of the biggest obstacles in divorce negotiations is overcoming expectations. Expectations are developed as early as a client’s initial consultation that includes a sales pitch and a promise. Unfortunately, legal advice can and usually does shift when more objective information becomes available.

The problem is that the initial expectations become Anchors from which it may be difficult to deviate. Receiving anything less than initially expected will seem like a loss, even if it is an objectively reasonable and likely outcome.

Another issue arises when there are drastic disagreements over subjective financial matters, such as valuation of property. People typically overvalue their belongings, which is known as the Endowment Effect. As a result, it may be difficult to settle a buyout of a house, which carries history, memories, and sometimes serves as a home base for custody-related reasons. In financial negotiations, parties are expected to be rational and value a home based on an objective financial analysis. In reality, one person must receive less than what he or she believes it is worth due to the Endowment Effect. That person then typically uses the money to purchase a new property unaffected by those same biases. The result is the feeling that the person received less for the marital home and acquired something worth less.

One way to assist in financial negotiations is to implement the aforementioned Choice Architecture, which is another way of saying that we can frame choices to influence decisions. One way I have accomplished this in a negotiation is by providing multiple options that account for the biases parties bring into their decision-making.

Example of Choice Architecture:

Mr. and Mrs. Smith are negotiating the issues surrounding their house and the amount of spousal support to be paid by Mr. Smith.

The goal is for my client, Mrs. Smith, to get the marital home and receive as much support as possible. My client is aiming for Option 3 in this offer.

• Option 1: Mr. and Mrs. Smith sell the house and each receive $80K ($40K in closing costs, divided equally). Mr. Smith pays $2,000 per month for 36 months in spousal support
• Option 2: Mrs. Smith buys the house for $100K. Mr. Smith pays $2,000 per month in support for 30 months
• Option 3: Mrs. Smith buys the house for $100K. Mr. Smith pays $1,800 per month in support for 36 months

Option 1 is completely unacceptable under any objective analysis, but it is valuable because:

1. The presence of Option 1 shows that a buyout is better for Mr. Smith (an extra $20K), which will immediately narrow the focus between Options 2 and 3;
2. Even though Option 1 is the higher amount of support for the longer period, it serves as an anchor for both numbers.
   • Option 2 “saves” 6 months of support for Mr. Smith
   • Option 3 “saves” $200 per month for Mr. Smith

There are different benefits to each option, but my guess is that most people would choose $1,800 per month because all support payments are perceived as losses and it is easier to picture a smaller loss for a longer period (Present Bias).

We have therefore constructed options that are aimed at Mr. Smith selecting Option 3, which provides for $4,800 in additional support as compared to Option 2.

Compare the above choices to a typical offer – I want $1,800 per month for a period of 36 months. $1,800 will not feel like $200 savings and 36 months will still seem too long. If I go even higher with my only offer, as most clients wish to do in order to give “negotiating room,” you run the risk of the offer coming across as unreasonable and not advancing the negotiations.  Alternatively, you are negotiating all of the terms and slowing the negotiations to a crawl.

That is not to suggest that Choice Architecture will guarantee success, but that it is designed to account for our biases and instinctual decision-making processes.

Example 3 – Timing of Negotiations

Lastly, whether due to a lack of time, distractions, or even for perceived strategic advantage, settlement negotiations are often saved until just prior to a trial. Objectively and behaviorally, this is one of the worst times to settle a case for several reasons – mainly the following:

• Confirmation Bias: Through Confirmation Bias, we seek ideas and evidence that confirm our beliefs while reacting negatively to anything that contradicts our beliefs. As a client and attorney prepare for trial, they analyze the information in a light most favorable to their argument. It is likely that they ignore or even overlook the counterarguments. The positions become even more ingrained and the case becomes harder to settle.

• Overconfidence: Related to and often resulting from Confirmation Bias is Overconfidence. If we continue to support and confirm our beliefs while simultaneously devaluing contradictory information, we become overconfident in our chances of success. A client is less likely to negotiate a fair outcome if he or she is overconfident about his or her chances in Court.

• Sunk Cost Effect: The Sunk Cost Effect occurs when a person continues his or her behavior because of previously invested resources. Once we are invested in something, we have a hard time giving up on that investment. I have had clients openly admit that they would probably have accepted an offer if it came earlier in the case, but now that so much was spent on attorney fees, they feel it is “worth it to roll the dice” at trial.

  Objectively, the amount spent on attorney fees should have no bearing on whether to accept the deal. Additional attorney fees have no effect on the outcome of the case. Even more puzzling is that proceeding to trial will cost even more money to take the same risks.

If attorneys are aware of these biases, they should be making a concerted effort to gather the necessary data and proceed to negotiations much earlier in the litigation process. Doing so would lessen the impact of these biases on the negotiations and increase the chances of success.

Behavioral Economics clearly plays an important role in the way we think about money and make financial decisions, but its principles also guide the way we make decisions in many other areas of life.

In matters of family law, it is important to have an attorney who accounts for our natural tendencies and considers those in his or her counsel. If you have questions about a Virginia divorce or other family law issue, or wish to discuss a fresh approach to your case, Curran Moher Weis has experienced family law attorneys who can assist you through the process.

Please check out our reviews. You can request a consultation on our website or by calling us at (571) 328-5020.