Divorce Definitions Continued

    Last month we started a series on divorce definitions, in that spirit, we want to talk some about the basics of a separation/divorce process and some of the misrepresentations we hear.
    “Filing” of a divorce refers to filing (or providing) the Complaint to the court clerk’s office to initiate the divorce process.  Filing occurs if an agreement cannot be reached or if an agreement has been reached, it is filed after the statutory time period (6 months from the date of separation if no children and one year from the date of separation if there is children). Settlement proposals are not filed with the court.
    “Serving” the other spouse refers to the procedure after a divorce is filed when the non-filing spouse receives a copy of the Complaint and in most cases are done by either  a private process service or the sheriff’s office.  Settlement proposals are normally not served. 
    Negotiations are a wonderful approach to seek a resolution; it is a voluntary process that requires participation from both sides.  The court system cannot force an agreement to be signed, and as a rule is not privy to the terms of the settlement discussions between the parties.

Cost of private school payments in divorce

As many know, Virginia has developed and enacted child support guidelines that are based on parents' gross income, number of children, custodial time, cost of child care and cost of health insurance for the children.  Although these guidelines provide the presumptive amount for child support, deviations can be awarded.  One consideration for a deviation is the cost of private school.  However, seeking a deviation for such costs is under repeated scrutiny by the courts and there are many factors that must be considered and information that must be presented including but not limited to whether public schools in the area are able to meet a child's needs, whether the child has special emotional or developmental needs that are better handled by a private school, the financial resources of the parties, the educational history of the child to date and others, etc.   It is important to understand the law that provides courts the authorities to deviate.

Legal Custody and Physical Custody

“Legal custody” and “physical custody” are the two components of custody that must be determined when children are involved in a divorce.  Legal custody is the decision making aspect of raising children:  some examples include when will they start school, will they be enrolled in a gifted program or IEP, what kind of non-emergency medical treatment should be done, when should braces be considered, how should the children be raised religiously.  Physical custody is about the time that the children spend with each parent.  Physical custody can be any arrangement that is in the best interest of the children taking into account parents’ schedules, children’s school and activity schedules, distance between each parent’s home, how old each child is and how each child copes with different environments.

Legal Separation

“Legal separation” is factually based in Virginia.  It is normally the date when spouses stop living in the same residence.   There are other factual circumstances that the Courts may consider, however.  These facts may include but not be limited to whether the parties have separate bedrooms, separate bank accounts, file taxes separately, eat meals separately, go to children’s functions separately, and otherwise present themselves to the public as being separated.  If parties cannot agree on a date of separation, then the Courts may use these facts to decide.  Be careful, though, as there is public policy in Virginia that states that the Courts may not do anything that may constitute promoting divorce; as a result, some Courts may find that no separation exists for divorce purposes unless the parties are in entirely separate residences.  This can be a difficult area to navigate and working with a family law attorney is important.

Divorce Dictionary

Today, we will begin a series that we call “Divorce Dictionary.”   We have found over the years  when working with clients that we use legal terms of art that are not familiar to the ordinary person who has never faced divorce, never thought he/she would face , and hopes never to deal with divorce again.   To help navigate this world and its unique language, we have created this dictionary to help you understand.   

You need a what?

What you need is a QDRO?  A what?  A QDRO…. A qualified domestic relations order is that document that you need to tell the person who administers a retirement plan what to do with the benefits in that plan.  It can tell what percentage of benefits each spouse receives; it can tell a specific amount that each person receives;  it can tell whether investment experience should be applied (for certain plans); it can tell whether cost of living adjustments should be applied (for other types of plans); it can outline how survivor options must be exercised.  Without this document, the plan administrator does not know what to do and will not do anything without it.   The QDRO (pronounced –“qua-dro”) must be signed by the Court and a certified copy must be sent to the plan.  Experienced family law attorneys can help prepare these important documents and work with the plan administrators to make sure that the division is accurately done.

Retirement Planning

Retirement planning is important whether you are in your 20s, 30s, 40s, or 50s.  It is even more important if you are facing separation and divorce.   Understanding your family’s sources of retirement income is necessary.  Will you have Social Security independently or through your spouse?  Do you or your spouse have a pension (defined benefit ) plan through employment that will pay an amount each month at retirement?  What are the terms of that plan with respect to cost of living adjustments, survivor benefits, etc.?  Do you or your spouse have a 401k plan from  which distributions can be taken?  Are there any loans outstanding against the plan?   Does the employer match contributions and at what time each year does such a match occur?  Once you determine the potential sources that currently exist, a next good step is to work with your attorney and possibly a financial planner to construct a plan for how those sources can be distributed in a manner to help you toward your retirement goals.   The division of retirement benefits as part of equitable distribution in a divorce matter can be highly disputed and emotional.   Knowing how each plan works and how receiving portions of any or all of those plans is necessary to make sure your financial future post-separation is secure.