In recent years, many divorcing couples have chosen mediation as an alternative to litigation. Mediation involves many of the same procedures as litigation, but is geared to produce less hostility and lower the costs for the parties. Many mediators in Virginia have been properly trained for this process; however, some mediators have not. So, be vigilant and ask questions.

            The Virginia State Bar Association can offer referrals to a number of qualified mediators, as well as a list of attorneys who can represent clients in the mediation process and those that specialize in domestic relations matters.

            Many lawyers in our area are also collaboratively trained, another type of alternative dispute resolution to litigation.  I am collaboratively trained, as is Jace M. Padden of our office. The collaborative process allows a couple to end their marriage with dignity and respect and is a far more preferable method to litigation, provided both parties are emotionally capable and committed to the process.  

        Read Jace Padden's blog about the process and advantages of collaborative dispute resolution in more detail. 

     Child custody is the most difficult issue in a divorce. A variety of combinations exist to protect the best interests of the child. If the mother or father cannot agree on a custody arrangement, a judge will decide what is in the child’s best interest. In these cases, absent an appeal to a higher court, the parties must abide by the judge’s decision.             

       The Courts look exclusively at the child’s best interest, and no longer prefer the mother over the father in custody issues. The Courts may conduct a study of which home environment is best suited for the child and may even appoint a guardian ad litem for the child during the custody battle. A guardian ad litem, an independent attorney who is appointed to review the matter, acts in the best interest of the child. Be forewarned though, the parents may have to pay the guardian’s fee as well as their own attorney’s fees. A custody battle can be very expensive and emotionally devastating for both sides, win or lose. Be prepared!

Our laws which govern spousal support were modified on July 1, 1998 in Virginia. The Court can now award rehabilitative spousal support for a period of time based upon certain factors such as the education, training, employment history, decisions made regarding the care of the children, and physical and mental health of the party seeking support. The parties can also contract, in a Property Settlement Agreement, to any arrangement of spousal support they desire.  If the parties do not reach an agreement regarding spousal support, the Court can set support for a period of time or until the death of one of the parties, remarriage or cohabitation pursuant to Virginia law.

On the other hand, child support is governed by statute and is based on the gross incomes (real or imputed) of both parents. If one parent is earning substantially less than he or she could reasonably earn, additional income may be imputed to that parent. The child support guidelines are designed to provide a child with the amount of support needed to provide for his or her food, shelter, clothing, medical needs, etc. based upon the parents’ joint gross income. Generally, payment of child support extends until the child graduates from high school or reaches the age of nineteen, whichever occurs first.

          Often in a divorce action, the departing spouse, remorseful, may be eager to end the marriage. In his or her eagerness, this spouse will often make a more than generous offer to settle the domestic issues. In these cases, I often urge my client to look to the future, not to the past, and (if the agreement is appropriate) to accept the offer. Many times, the quicker the division is reached, the better. Settlement allows emotions to calm down, and the bulk of the family financial resources to remain with the family rather than be spent on attorneys and other costs of court such as expert fees, court reporter fees and the like.             

        Once the Property Settlement Agreement has been thoroughly reviewed and executed by the parties, the Agreement will stand unless a spouse can prove that he or she signed the Agreement under fraud, coercion or duress. The legal theories of fraud, coercion and duress are difficult and costly to prove. The Property Settlement Agreement is much like marriage - - not to be entered into lightly or ill advisedly. Again, my advice is that both husband and wife have separate legal counsel to prepare and review the Agreement before execution.

            A Property Settlement Agreement or Separation Agreement is a contract, executed by husband and wife, in which the parties divide their marital assets and debts as well as settle any other issues arising out of the parties’ marriage. The goal of the Property Settlement Agreement is to settle as many issues as possible between the parties to avoid the time and expense of litigation. A standard Property Settlement Agreement includes the division of marital assets and debts (such as real estate, automobiles, furnishings and savings accounts) and resolution of other matters such as spousal support, child support, child custody, visitation rights, and health insurance coverage.                       

           An attorney should prepare the Property Settlement Agreement to ensure that all matters are properly addressed and the legal terminology is accurate. If the parties cannot reach an amicable settlement of all issues, whatever issues remain unresolved will be decided by a judge after depositions of the parties and their witnesses have been taken.

         In Virginia, couples face two options regarding the type of divorce sought.  A divorce can be granted for fault reasons, such as adultery, cruelty or desertion. A “no-fault” divorce can be granted based upon a separation of the parties (one year if the couple have children under 18 years of age or six months if there are no minor children), and if parties have entered into a Property Settlement Agreement/Separation Agreement.  A “fault” based divorce is significantly more time consuming and costly than a “no-fault” divorce proceeding.            

       Even if the parties have agreed on all of the issues regarding their marital assets, I do not recommend using the same attorney. Often a problem will arise in drafting a Property Settlement Agreement or in finalizing the divorce proceedings, and each party will need an attorney to represent his or her individual interests exclusively. 

        When someone is considering a separation or divorce, he or she should consult an attorney who specializes in domestic relations law. The state bar referral service can assist people by providing the names of local attorneys who specialize in domestic relations matters. Most attorneys, including our attorneys, charge a fee for an initial consultation. Further, attorneys generally ask for an advanced fee and/or retainer when they are hired to represent a client for a specific case. This practice is customary, although the amount of the advanced fee to retain the attorney will vary from attorney to attorney.            

       As the divorce action proceeds each month, the client’s legal fees are totaled, and the sum is deducted from the original advanced fee. This process continues until the fee has been depleted. Then the client is generally asked to provide an additional advanced fee and/or pay for the legal services each month in full until the case is completed. Without question, divorce litigation can be very costly, but the counsel of a good attorney in a divorce action is vital.             

       Legal representation is highly advisable, even if only for advice concerning a no-fault divorce. Everyone needs to understand what his or her rights and responsibilities are when a marriage is ending.

       Divorce is often a slow and painful process. But people can and do make it through this difficult time period.

      If a separation is imminent, it is essential to have a strong support system (family, friends, a minister or pastor) to help face the difficulties that lie ahead. I also recommend that my clients consider counseling with a licensed social worker or counselor who is trained in handling divorce-related issues. Unfortunately statements or admissions made to a counselor or therapist often are not protected during a divorce proceeding. Accordingly, the need for counseling for an individual must be weighed against the risks of the contents of counseling sessions being revealed in Court. 

     I also encourage my clients to consider, and ask their spouse to consider, marital counseling before proceeding with divorce. A trained counselor or therapist may be able to sort out the issues and assist couples in addressing those issues, perhaps even leading to reconciliation. Even if reconciliation is not an option, counseling can definitely help both spouses cope with this major life crisis. A counselor can also help parents deal with the anxiety and stress their children may be feeling as a result of the separation and divorce.

In March, I attended a four day course on collaborative law and mediation. The participants were attorneys, mental health professionals (counselors, therapists, psychologists) and financial experts. The experience was exciting in many respects. It was great to see so many people who are genuinely interested in Alternative Dispute Resolution and helping families resolve their differences in a healthy, productive manner. The couples who take this route of resolving disputes seem genuinely pleased to conclude their “business” with one another and move forward with their lives.  I gained valuable insight from the mental health professionals who I hope will assist me in serving as a mediator, collaborative lawyer or counsel in family law disputes in the future.

The longer I practice family law, the more important I see alternative dispute resolution as a way to resolve differences in family law cases.  Whether a couple is divorcing or deciding upon a custody and visitation arrangement for a child, the path they choose is important.  Alternative dispute resolution gives people an opportunity to make a decision themselves rather than allow a third party to do so.  Most cases that start down the litigation path ultimately settle out of court.  So why not try that path from the beginning of the dispute?

In family law, there is no “one size fits all” approach to resolving a case, but I believe people are ultimately more satisfied with the decision made if they are actively involved in making that decision rather than abdicating this role to a judge.  While we are fortunate in our area to have very good judges, by taking a case to court, you are essentially giving up your right to create the solution.

Clearly in some cases alternative dispute resolution is not a workable solution, particularly if there is abuse; however, we can make that decision together based upon a client’s objectives and the process that suits the situation best.