Answers to Your Most Frequently Asked Questions

You're probably full of questions right now—and that's okay, because we have answers! Check out some of the questions we hear the most about bankruptcy, divorce, and child custody from clients just like you.

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  • How are marriage debts divided during a divorce?

    This is a freelance article from Gemma Herbert

    Psychologists note that a divorce is one of the most stressful life events a person can undergo in both an emotional and practical/financial sense. Divorce often places economic strain on individuals, since most couples take out various loans, including mortgages, car loans, credit card loans, etc. When divorce comes around, it can be difficult to decide which partner is responsible for which debts (or parts of debts). Another difficulty arises when one partner refuses to pay debts a court has deemed them responsible for.

    Division of Property and Debt in Virginia

    Since Virginia is an ‘equitable property state’, all property and debt acquired during the marriage should be equally divided between spouses upon divorce, unless they have agreed otherwise or unless the court finds that equal division would be unjust.

    The Court carefully analyzes all property owned by the couple, assigning each spouse with a particular percentage of the total value of the property and debts. Consideration is always given to monetary as well as non-monetary contributions made by each spouse. Often, two thirds of the property will go to the spouse who earns a higher wage, and one third will go to his/her spouse. In states subject to community property rules, both spouses typically divide any property acquired during the marriage 50-50. 

    Equitable Distribution: Considerations Made by the Court

    The Court takes a number of factors into account in an equitable distribution divorce, including:

    • How long the marriage lasted.
    • The income and future earning potential of each spouse.
    • The health and age of each spouse.
    • The standard of living enjoyed by the family during the marriage.
    • The childcare provided during the marriage.
    • The value of the investment one spouse made with the other’s education.

    Marital vs Non-Marital Property

    The distinction between these two types of property can sometimes be difficult to assess though as a general rule, marital property includes all earnings made during the duration of the marriage, and anything accrued with those earnings.

    Any debt incurred during the marriage is usually classified as marital property, unless the lender was looking to one spouse’s independent property as a potential source of payment.

    Non-marital property, on the other hand, includes damages for personal injury, property acquired with one spouse’s separate funds which remain the property of that spouse, inheritances, gifts, businesses owned prior to the marriage, etc.

    With respect to businesses, if a spouse can show they have helped increase the value of their spouse’s business during the marriage, a percentage of the business may be considered marital property.

    Finally, any property bought with a mix of marital and separate funds is classified as part marital and part non-marital property. When non-marital property is mixed with marital property, it is generally classified as marital property.

    The marital home is often a bone of contention, with the person providing primary care for any children having the right to live in the home. If there are no children and the home is in the name of one spouse, that spouse may have the right to ask the other spouse to evacuate the home. If the home belongs to both parties, they may decide to sell the house and divide any profits made, in the percentage ratio decided by the court.

    Enforcement of Unpaid Debts

    Once the Court decides which party is responsible for particular debts (or the degree to which each spouse is responsible), trouble can occur if one spouse fails to meet their obligations to pay debts. If this occurs, you can petition the court to enforce the agreement; your spouse will have to explain why they cannot honor the debt as ordered, and they may have to face fines or imprisonment. Some spouses choose to pay debt then request reimbursement from their spouse. Although legal advice is crucial in these cases, a good general rule is to try to pay all debts during the divorce, so you can work on building a better future instead of dwelling on the past.

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    Further reading

    Booth and P. Amato, Divorce and Psychological Stress. Journal of Health and Social Behavior, Vol. 32, December 1991, 396-407.

    American Psychological Association, Healthy divorce: How to make your split as smooth as possible, accessed January, 2016.

    Q, Debt Help, accessed January, 2016.

    Forbes.com, Understanding How Assets Get Divided in Divorce, accessed January, 2016.

    Social Science Research Network, The Equitable Distribution of Marital Debts, accessed January, 2016.

    Floridabar.org, A Seven-Step Analysis of Equitable Distribution in Florida Part 2: Distributing Marital Property, accessed January, 2016.

    Eisneramper.com, Who Gets What?, accessed January, 2016.

  • What are the statistics on divorce in America?

    Check out these interesting facts on American divorce...

    • There is 1 divorce approximately every 36 seconds. That's nearly 2,400 divorces per day, 16,800 divorces per week and 876,000 divorces a year.
    • The divorce rate for a first marriage is around 41%. The divorce rate is 60% for a second marriage and 73% for a third.  Cumulatively 1 in every 4 families will face divorce.
    • The average length for divorce proceedings is 1 year.
    • First marriages that end in divorce usually last approximately 8 years.
    • Approximately 6% of American couples marry, divorce, and then remarry each other.
    • The divorce rate for couples over 65 years old has doubled since 1980.
    • Marriages are more likely to last longer when people marry at an older age, have a higher education, and earn more money.
    • Contrary to popular belief, premarital cohabitation does not increase a couple’s divorce risk if the couple intends to get married.
    • The top 5 reasons for divorce include communication problems; infidelity or betrayal; financial problems; psychological, emotional, and physical abuse; and loss of interest.

    Political

    • Ronald Reagan is the only known U.S President to have been divorced.
    • Couples in Republican states are 27% more likely to divorce than couples in Democratic states, as Republicans have historically married younger than Democrats.

    Male vs. Female

    • In 2/3 of all divorces, it's the woman who files. Additionally, while men are financially better off than women post-divorce, they typically suffer more emotionally.
    • The average age of divorce for a first marriage is 29 for women and 30.5 for men.  The average age of divorce for a second marriage is 37 for women and 39.3 for men.
    • Women on average wait 3.1 years to remarry after a divorce. Men wait 3.3 years.
    • A marriage in which a woman is 2 or more years older than her husband is 53% more likely to end in divorce than if the husband were 3 or more years older or only 1 year younger.
    • 79.6% of custodial mothers receive a support award, while only 29.6% of custodial fathers receive support.
    • 46.9% of non-custodial mothers totally default on support, while only 26.9% of non-custodial fathers totally default on support.

    Race

    • White women who marry outside their race are more likely to divorce than other ethnic groups. Mixed marriages involving blacks and whites were the least stable interracial marriage, followed by Hispanic-white couples.
    • Asian women are the most likely to be in a first marriage that lasts over 20 years. The CDC statistics show 70% of Asian women are still in their first marriage, compared to 54 % of white women, 53% of Hispanic women, and 37 % of black women.

    Children

    • Couples with children have a slightly lower divorce rate than couples without children.
    • If there is a daughter and no son in a marriage, the union is 5% more likely to end.
    • Having twins or triplets increases the risk of divorce by 17%.
    • Children of divorced parents are twice as likely to drop out of high school and less likely to attend college.

    Geographical

    • According to 2012 U.S. Census Bureau statistics, New Jersey has the lowest divorce rate out of all 50 states. Also with low divorce rates are New York, Connecticut, Delaware, and Massachusetts. The East coast in general has a divorce rate of less than 12%.
    • Nevada has the highest rate of divorce at 14.7%. Wyoming, Florida, Kentucky, and Tennessee all have rates of divorce over 13.%.

    Occupation

    • Dancers and choreographers reported the highest divorce rates at 43.1%, followed by bartenders at 38.4% and massage therapists at 38.2%. Other occupations in the top 10 include casino workers, telephone operators, nurses and home health aides.
    • Occupations with the lowest divorce rates include agricultural engineers, salespeople, nuclear engineers, optometrists, clergy, and podiatrists.
    • According to the Defense Department, the divorce rate of military couples rose from 2.6% in 2001 to 3.7% in 2011. The Air Force has the highest rate of divorce out of all the services.

    Substance

    • If one partner smokes, a marriage is 75% more likely to end in divorce.
    • Divorced men are at an especially high risk of alcohol abuse. In contrast, divorced women’s alcohol consumption falls sharply after a divorce.

    Medical

    • Women who have been diagnosed with cervical cancer are more likely to divorce by 40%. If a man is diagnosed with testicular cancer, the marriage is 20% more likely to divorce. On contrast, breast cancer survivors are 8% less likely to divorce than women who have not had breast cancer.
    • Men are eight times more likely than divorced women to commit suicide. They are also twice as likely to suffer depression and heart attacks.
    • If a spouse has gained more than 20% of his or her body weight, divorce is more likely.

    Celebrity Divorce Facts

    • Mel and Robyn Gibson's divorce in 2009 is considered to be the largest celebrity divorce settlement, as Mel paid his ex $425 million.
    • The celebrity who has been married and divorced the most is actress Zsa Zsa Gabor, who has been married nine times.
    • Britney Spears holds the record for shortest celebrity marriage; her union with childhood friend Jason Alexander lasted only 55 hours before it was annulled.

    Need help with an uncontested divorce?  I can help you!  Call me today at (757) 320-2010.

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  • What are the grounds for getting an annulment in Virginia?

    The valid grounds for an annulment in Virginia are very limited. The stipulations are:

    1) One spouse was impotent at the time of the marriage;

    2) One spouse had been convicted of a felony at the time of the marriage;

    3) The husband had fathered a child born to another woman within ten months of the marriage;

    4) The wife was pregnant at the time of the marriage by another man;

    5) One spouse was a prostitute.

    All of these circumstances require that the spouse seeking an annulment was not aware of the issue at the time of the marriage and that they moved to end the marriage as soon as they found out about the issues.

    There is no right to an annulment based on the length of the marriage. If the couple separates right after the wedding, they will have to file for divorce unless one of the circumstances about applies.

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  • What does it mean to be legally separated in Virginia?

    One of the most misunderstood terms in divorce law in Virginia is "legally separated". I get calls every week from someone who tells me that they want to file for a legal separation.

    Action & Intention

    To be legally separated, the state of Virginia does not require any paperwork nor is there anything filed with a Court to be considered "legally separated".  All that is required is to be living separate and apart and that one of the spouses intends to end the marriage. That is it... an action (physically separating) and an intention (to end the marriage). Note that it does not require a mutual decision to end the marriage, only one spouse has to have the intention.

    Proof of Separation

    The larger issue is proving that you are legally separated. When you file for a divorce, you will have to provide evidence that you were legally separated for the required time period. This is normally done with the testimony of a witness that you have been separated for the length of time, that the separation has been continuous and uninterrupted and that you stated your intention to end the marriage. Your witness must have been in a position to know that you and your spouse have been living separate and apart.

    If you are currently separated from your spouse and you are ready to get a divorce, contact Hampton Roads Legal Services at 757-320-2010. We will set you up with a free phone consultation to discuss your situation. 

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  • What is a No Fault Divorce?

    There are two ways to get a divorce in Virginia.

    Fault Based Divorce

    One way is based on some type of conduct by one spouse that allows the other spouse to seek a divorce. This is commonly referred to as a fault based divorce since it is due to the fault of one of the parties. Grounds for a fault based divorce are things like adultery, abuse or desertion.

    No Fault Divorce

    The second way to get a divorce is through what is normally called a no fault divorce or a divorce based on a legal separation.

    When To File

    In Virginia, you can file for a divorce if you have been legally separated for one full year. You may also file for a divorce if you have been separated for six months, have no minor children of the marriage AND have a separation agreement that both spouses have signed. All three requirements must be present to file for a divorce after a six month separation.

    If you have minor children of the marriage, you will have to be separated for one full year before you can file for a divorce regardless of whether you have a signed separation agreement. Likewise, you must be separated for one full year before you can file for a divorce if you do not have a signed separation agreement regardless of whether you have children.

    What is Required

    To be legally separated the state of Virginia does not require any paperwork. All that is required is that the spouses be living separate and apart and ONE of the spouses intends to end the marriage. It does not require a mutual decision to end the marriage. I always tell people who call me about becoming legally separated that if they move out of the home today and announce to family or friends that the marriage is over, they have become legally separated in the state of Virginia. While it is possible to be legally separated and living in the same house, it is extremely difficult to prove.

    There is a difference between an uncontested divorce and a no fault divorce. You can check out our FAQ about uncontested divorce to see what makes a divorce contested.

    If you are currently separated from your spouse and you want to start on a your new life as a single person, give us a call today at 320-2010. We will set you up with a free phone consultation with one of our attorneys to discuss how you can get a divorce and move on with your life.

  • What is an uncontested divorce?

    An uncontested divorce has nothing to do with whether both spouses agree to get a divorce. It's a divorce where both parties have been able to agree on the important issues surrounding their breakup, like who gets what and who pays for what.  In an uncontested divorce, the parties are able to settle outside of court.

    A big advantage of an uncontested divorce is cost: by keeping things out of the courtroom, it is possible to save a large amount of money. When divorces go in front of a judge, you're at the mercy of the court and its timeline, and this means proceedings may get stretched out over a long period of time. In addition, any time that you are fighting over assets, you will end up paying a great deal in legal fees for the representation.

    Another big advantage of an uncontested divorce is the fact that you are in control of your life and your future. By working things out with your spouse, you are able to decide what happens to your property, where your children will live, and how much spousal support might be paid.  This is usually best, because let's face it--who do you think is in a better position to decide what works best with your situation--you and your wife?  Or a judge who knows little about you other than what's been on a few pieces of paper that have been filed.

    Most couples formalize their agreement through a document called a Property Settlement and Stipulation Agreement, commonly referred to as a "Separation Agreement." This Agreement will be incorporated into the Final Decree of Divorce. This way you don't have to stand before a judge and let her determine your fate. Divorce has a way of flipping your life upside-down, and many people find comfort in having a measure of control over what happens next.

    Although an uncontested divorce is a popular option, it is—unfortunately—not for everyone. If you are leaving an abusive relationship, the situation is probably not ideal for negotiating as equals. Also, some couples harbor such negative feelings about each other than it would simply be impossible for them to sit down together and work out the terms of their divorce.

    If you are thinking about getting a divorce in Virginia, contact the Virginia Beach divorce law firm of Hampton Roads Legal Services at 757-340-3100 for a free report on the divorce process in Virginia.  We can also provide you with a free phone consultation to discuss what we can do for you!