In Virginia, chances are high that at some point in your life, you’ll need a lawyer: Maybe you end up going through a heavily litigated divorce, or perhaps you get rear-ended on I-66 at peak rush hour. People are rarely at their best during these high-stress situations, so being informed about the laws surrounding them is key. We collaborated with some of this year’s Top Lawyers to gather basic facts you need to know about common areas of the law—divorce, domestic violence, personal injury and criminal cases—so you can protect yourself in whatever scenario you find yourself. Look for the second part covering criminal and personal injury law later this month.
What happens when one party doesn’t know about finances in a divorce?
It seems like a perennial theme in divorce-related movies or TV shows: A couple gets divorced, and one party—generally the wife—is completely in the dark when it comes to household finances. But in the real world, this is a common marital situation. One person is generally in charge of the household bills, taxes, insurance and other aspects of the financial situation whether that person is the main breadwinner or not. Where this becomes an issue in a divorce is the final property settlement. Lawyers can only work with the information given to them by the client, and this imbalance in knowledge between the two parties allows the in-the-know spouse to do more financial wrangling during the proceedings. Of course, the discovery process allows lawyers to gather financial documents and learn more about the overall situation, but that costs the client more money and takes more time, especially if they’re not sure what to look for. To further complicate the situation, if one spouse loses access to their money after initiating a divorce, paying for a lawyer then becomes much more difficult.
In terms of discovery of financial information and the settlement agreement, Gerald Curran, a family lawyer with Curran Moher Weis, says that lawyers are pretty good at finding what they need, so it depends how far a client is willing to go. However, this only applies if the case has been filed with the court. What Curran sees more often are settlement mistakes in amicable divorces, where the court is not involved at all, because you’re relying on the honesty of the other party to offer all the details about assets. He recommends including a clause in the settlement agreement stating that both parties fully disclosed their assets, a provision that allows the court to intervene if it’s discovered later that certain information was withheld. However, he notes that this post-divorce intervention isn’t very common—he says he’s only seen it about twice in 20 years of practice—because it means you have to somehow discover assets after the divorce.
Curran says that a lack of financial knowledge can come into play even if a couple is not pursuing divorce. If one spouse dies suddenly, for example, it can be difficult to make arrangements if the surviving spouse hasn’t been involved with the family finances. Because of this, Curran recommends both spouses be aware of the household finances and have access to accounts and investments. If someone is reluctant to share that information, he says, “that’s usually a red flag.”
What information can you use from a spouse’s phone or computer?
Our phones and computers often hold our lives on their hard drives, so if a spouse suspects adultery, it’s tempting to go right for text messages and emails looking for proof. However, the right to privacy is something the courts are trying to protect, and some kinds of DIY detective work leave the snooper open to criminal prosecution. According to Teresa Cole, a family law attorney, the key is whether the person whose privacy was invaded to get the information had a reasonable expectation of privacy—factors such as whether the information was on a family computer or a work computer, if the information was password protected and if the password had been shared with the other party would all be considered when making that determination. If you got the information illegally, you wouldn’t want to risk prosecution by trying to use it in court.
There are proper legal channels for this kind of information-gathering, such as through discovery or by accessing a copy of a computer hard drive via subpoena. “That’s what the problem is: A lot of people are gathering that information before they’ve started the court proceedings, so that’s where they get into that questionable behavior of whether they’ve violated the law in doing that or not,” Cole says. “Once you’re in the court process, you’re allowed to discover relevant documents and information in the other party’s possession, but it’s that party that’s supposed to produce it.”
Cole says she hasn’t seen a lot of prosecution of spouses for this kind of privacy invasion—these statutes are mostly intended to protect against hackers or others who are trying to wrongfully access our private information—but warns that because the laws are on the books, it could happen.
What happens if you leave the marital home?
“An attorney is often going to tell a spouse that’s still living together but wants to separate not to leave the home because a) they may be accused of abandonment and desertion, which is a fault grounds for divorce, and b) it’s very difficult, if custody is an issue, to move out of the home that is the children’s home and still expect to have custody,” Cole says.
The solution for the couple is for both parties to come to an agreement to live separate and apart. Cole says even an email exchange will suffice if it shows that the spouses are on the same page regarding the separation. Where abandonment and desertion come into play is if someone moves out against the other person’s wishes.
Custody is a factor to consider when moving out during a separation. The court is focused on preserving normalcy in a child’s day-to-day life, so they typically keep them in their home and temporarily give custody to the person who stayed there while granting the other party visitation. Another aspect of staying in the home comes up at the final custody hearing a year later: The party who has been with the child in the home for a year has an advantage.
Protective Order Timeline
If the courts are open …
1. Meet with an intake officer and give a statement.
2. Go in front of a judge, who will review the petition and decide whether to issue a preliminary protective order.
3. Preliminary protective order issued and defendant served by the sheriff’s office with the petition.
4. A hearing must take place within 15 days.
5. The defendant can appeal the final protective order within 10 days of the entry of the order.
• If the court issues the final protective order, it can be in effect for up to two years.
• If the petitioner has a change of heart, there must be another hearing to ask the court to modify or dismiss the order.
• If the petitioner wants to renew the protective order, he or she must appear in front of the judge again.
If the courts are closed, an emergency protective order can be issued.
1. Meet with magistrate to present evidence.
2. If an emergency protective order issued, it’s valid for 72 hours.
3. Pursue a preliminary protective order.
What do you do if you’re served with a protective order?
The burden of proof on the person petitioning the court for a protective order is a preponderance of the evidence, which means that it’s more probable than not that the claimed abuse occurred. With that in mind, here’s what you should do if you’re served with a protective order:
• Hire an attorney.
• Stay out of the home in the meantime. If you need to get things from the house, go with a police escort
• Don’t contact the petitioner directly or through a third party such as a friend or family member; the only communication should be through the attorneys.
• Call witnesses and present evidence at the hearing.
“Does adultery even matter?”
“Virginia does still have fault-based divorce, so adultery can matter in the sense that someone can seek a divorce on the grounds of adultery, if such grounds exist. In terms of support, that’s probably where you’d normally see the biggest impact, and there’s somewhat of a double standard because it’s a bar, except in certain circumstances, to the person requesting spousal support if they’ve committed adultery. It can be more punitive to a spouse who needs support and is guilty of adultery than a spouse who is guilty of adultery but doesn’t need spousal support. If you are a spouse who will pay spousal support and it is your adultery that was the cause of the dissolution of the marriage, you will likely pay more support if you go to court than you would if you were not at fault.” –Teresa Cole
“In Virginia, yes. Virginia is a fault-based divorce state, and the appellate courts have routinely said adultery or the cause of the dissolution of the marriage matters. It matters in property division, and it matters in support. Because these cases are done by judges, it can matter a lot or it can matter a little depending on who’s hearing the case. But the question of does adultery or does fault matter? Yes.” –Gerald Curran
“It waxes and wanes over the years, but right now I think it’s sort of on a resurgence. There are some recent cases that said the court must consider adultery as a factor. When the parties go in for [a divorce]—say there’s no children involved—the court sets what’s called an equitable distribution trial somewhere in the next nine to 12 months. At that trial, the party alleging adultery is entitled to prove factors and circumstances leading to the dissolution of the marriage. Then if the adultery is egregious enough, the court can then decide the party who was the victim of the other party’s adultery can get more than half of what there is to get. The court’s only balm for the wound is monetary, so the court can certainly award the injured party compensation.
I think there’s an obligation of the attorney to present factors and circumstances leading to the dissolution of the marriage, including adultery, because it can shift the financial distribution of the assets.” –Richard Gray
A private investigator can be a helpful resource when it comes to gathering the clear and convincing evidence needed to prove adultery in court. As a professional, a private investigator is licensed and regulated, with state statutes dictating what they can and can’t do. Here are some of their tricks of the trade.
• Mark tires with chalk or place a penny on top of a tire to see if it’s moved. This could be useful in proving that there was an opportunity to commit adultery if the car was left overnight at a hotel or at a girlfriend/boyfriend’s house, for example.
• Take photos or videos from a public place. For example, if the PI is on the sidewalk in front of the home and the blinds are open, they can take photos of whatever they see through the window.
• Have an expert create a forensic image of a home computer hard drive. Teresa Cole notes that while creating the image or copy of the device is legal, you sometimes need a subpoena from the court or you need to go through some other legal channel to actually look at the information.
• Film shadows.
• Split blinds to look inside a home or building.
Noninterference agreement (n.): a paragraph in a separation and property agreement that states neither party will interfere in the other’s life and that you’re free to live separate and apart as if unmarried.
A noninterference agreement can be thought of as a provision that allows for legal dating before the final divorce order is granted. Although an extramarital relationship during the separation period is still considered adultery under the law, the noninterference agreement means the adultery is not actionable once the agreement is signed.