Virginia's Mediation Made Easy

 

What is important to you is important to us ... a mutually agreeable & fair resolution

 
Call Us Today: 1.877.587.8802
Northern Virginia, Locust Grove,  Fredericksburg. 
Convenient 
at-home mediation services
 

General Settlement Agreement:

1. A resolution between disputing Parties about a legal case
2. The act and process of adjusting or determining the dealings or disputes between persons without pursuing the matter through a trial
3. Outlines and defines how the terms, conditions, and requirements for a resolution between disputing Parties about a legal case that is reached either before or after court action begins
4. Structured settlements provide for a periodic payment
5. Agreement and contract based upon the bargain to forgo any future litigation in return for the certainty written into the settlement
6. The courts will enforce the settlement; if breached, the Party in default can be sued for breach of contract or can face the original action being restored
7. A contract between Parties that is put in force by an order of the court after a joint, formal legal acknowledgement and agreement is made between opposing Parties; seek legal council
8. Upon completion is filed as notice that the case has been dismissed
9. Most settlements are confidential
10. Settlements are subject to approval by the court pursuant to Rule 23 of the Federal Rules of Civil Procedure; confidential settlements may be requested in discovery unless harm or prejudice would result from the disclosure

Frequently Asked Divorce Mediation Questions:


What is Divorce, Settlement, and Custody Mediation?

Mediation is a private process in which a neutral third person (a mediator) helps divorcing couples reach a mutually satisfactory settlement of the issues in their case, including child support, custody and parenting-time, alimony, and property division. A mediator does not act as a judge, arbitrator, or counselor, but assists the spouses in reaching a voluntary agreement.


How is Mediation Used in Virginia Divorce Cases?

Mediation is one of the most frequently used methods of negotiating a property or custody agreement in divorce cases. An attempt at mediation is strongly recommended in many Virginia counties. Some counties, for example, require mediation when it’s anticipated a hearing before a judge on a family law dispute will take three hours or more.


What is the Value of Mediation in Divorce Cases?

Mediation has many benefits in divorce cases, including:

  • It’s less expensive than using a lawyer to take the same case through the courts;
  • Mediation has a high success rate in resolving divorce issues, especially when both spouse are open to compromise and committed to reaching an agreement;
  • Mediation is confidential—there’s no public record of what goes on in your sessions (as opposed to a public courtroom where a record of all proceedings is made);
  • You and your spouse (not a judge) are in control of the decision-making process, and you have more flexibility in arriving at your own solutions;
  • Mediation can help improve communication and make future interactions with your spouse easier (especially important if you will have an ongoing relationship because you have children together); and
  • You can still ask a lawyer for advice if you wish (e.g., you can hire a consulting attorney to answer legal questions you may have during the mediation process and review the proposed divorce settlement agreement to make sure your rights are fully protected).


How Long Will Mediation Take?

A divorce mediation process can be as long or as short as the parties determine is necessary to negotiate a full and fair agreement. Mediation could take place in one or two sessions in one week, or many sessions over a period of months, depending on the complexity of the financial and custody issues involved and the willingness of the spouses to negotiate and compromise. Mediation almost always takes less time than going to court and is usually much less expensive than a contested divorce case.


What’s a Typical Mediation Session Like?

You and your spouse may be in the same room for the entire mediation, or you may meet in separate sessions so that you can give the mediator your opinions and positions in private. After meeting with both of you, the mediator will assess where you and your spouse agree, where you need some work to reach agreement, and how you are going to accomplish this. For example, if you and your spouse are dealing with the question of who stays in the family home, the mediator will help you figure out what information and materials you need to make a decision (such as financial records) and will ask each of you to commit to bringing these to the next session.


What Happens Once We Reach an Agreement?

Once you reach an agreement—for example, regarding a parenting plan—the mediator will reduce it to writing in what’s known as a “Mutual Consent Agreement.” Once both you and your spouse sign the agreement, it is a binding and irrevocable agreement that gets filed with the court with your divorce decree. If you and your spouse have both hired attorneys, they will use your Mutual Consent Agreement to compose the more formal, final divorce paperwork that will be presented to the court for signature.


What If We Can’t Reach an Agreement in Mediation?

If mediation isn't working, or if you and your spouse have reached agreement on most, but not all issues, you will probably end up in court, where a judge will make the final decisions on any remaining divorce issues.


Are There Situations When Mediation is Not Appropriate?

If there is a history of domestic violence or substance abuse in your relationship, you may not really be in a position to engage in mediation. For example, if you're the victim of domestic abuse, your spouse will undoubtedly have the upper hand in mediation, and may even try to intimidate you with the threat of further physical abuse in order to force you to accept an unfair agreement. The agreements made during mediation must be voluntary; if you're afraid of your spouse, or if your spouse is forcing you to accept unreasonable terms, you will walk away with an unfair agreement.

  

If you're in this situation, you should contact an attorney and the local police department and/or domestic violence advocates for help. The National Domestic Violence Hotline number is: 800-799-SAFE.

 

What Mediation Is and Is Not:

Our mediators do not provide legal or tax consultation and are not accountants. Through our expertise, we provide you with various perspectives and tap into our past experiences to give you the best information for you to make informed decisions. We have vast experience working through retirement, financial assets, home ownership, privacy and no interference, division of property, insurance, child and spousal support, parenting-time, custody, debt, and other equitable distribution issues that we are confident you will walk away with a Property Settle Agreement that accurately and fully represents your needs. 

 

What is the Property Settlement Agreement that Mediation Made Easy provides?

The property Settlement Agreement (PSA) is the written agreement entered into by the Parties in connection with a Divorce that provides for the division of the assets obtained either before or during the marriage. The PSA functions as the contract for enforcement or modification purposes and can include other issues such as alimony payments, child custody, and, broader in scope, can include other subjects besides those relating to divorce.

 

Validity of the PSA:

In order to be valid, the PSA is a written document, both Parties need to fully and honestly disclose financial resources and assets, and must be mutually agreed upon. The PSA is a legal document and therefore must be honored by both Parties. Failure to honor the PSA can result in legal penalties for the Party who is in violation and can result in criminal penalties such as fines. 

 

One common violation regarding PSAs is when one Party conceals or falsifies information about financial resources and assets from the other Party. On the one hand, a Party is generally free to handle assets independently as he pleases, such as investing it or making improvements on it, however, PSAs require that a Party at least informs the other Party of the existence of any such assets. Such violations are considered to be serious offenses and a court can hold a Party in contempt, impose fines and criminal charges, and even jail time for the disobedience.

 

What do I do with the PSA?

The PSA is attached and incorporated into the Decree of Divorce, survives the judgment of Divorce, and has independent legal significance. The attached PSA becomes a court order and is enforceable by the court's contempt powers. If a violation occurs, a Party can  seek monetary damages for the violation of the agreement. The PSA is a legal binding document for the years that follow and determines Party’s rights, obligations, and responsibilities from the marriage. The Parties can consent to amend the PSA or it can be modified by a court order, provided the PSA does not specifically state that the agreement is not subject to any court modification. Nevertheless, the court can always modify provisions in an agreement regarding the care and custody of any minor children.

  

Even if the PSA states that the agreement survives a judgment of divorce, a child support provision can always be modified by a court. Even though PSAs survive a judgment of divorce, a court’s authority to modify its child support orders may never be restricted by an agreement between parents. Parties cannot fix a child support amount for all time. Child support orders are different from any other divorce-related orders because children have a legal right to child support and the obligation is to the child, not the parent. Parties may not bargain away their children’s rights to support.

Divorce in Virginia

Prepared by the Family Law Section of the

VIRGINIA STATE BAR

1. What are the Grounds for Divorce?

Virginia law recognizes two types of divorce: divorce from bed and board (a mensa et thoro) and a divorce from the bond of matrimony (a vinculo matrimonii). A divorce from bed and board is a partial or qualified divorce under which the parties are legally separated from each other but are not permitted to remarry. A divorce from the bond of matrimony is a complete and absolute divorce. Any person granted a divorce from bed and board may ask the court to "merge" the decree into a divorce from the bond of matrimony after at least one year has passed from the date the parties originally separated. The law requires that "grounds" (valid reasons for divorce prescribed by law) for divorce must exist and be proven to the court even if the parties agree that a marriage should end. These grounds are briefly described below.

 

Divorce from Bed and Board

a. Willful desertion or abandonment

Desertion or abandonment requires both the breaking off of cohabitation and an intent to desert in the mind of the offender. A mere separation by mutual consent will not be considered desertion. Further, if one spouse leaves because the other has committed acts that legally amount to cruelty, then the spouse who leaves is not guilty of desertion. In fact, the spouse who leaves may be awarded a divorce on the ground of cruelty or constructive desertion.

If desertion grounds exist, a suit for a divorce from bed and board may be filed with the court immediately after the separation. If the desertion continues for more than one year from the date the parties originally separated, then the desertion is sufficient to constitute a ground for divorce from the bond of matrimony.

b. Cruelty and reasonable apprehension of bodily harm

Cruelty authorizing divorce requires acts that tend to cause bodily harm and render the spouses living together unsafe. Mental cruelty alone is not normally a ground for divorce in Virginia. However, if the conduct is such that it affects and endangers the mental or physical health of the divorce-seeking spouse, it may be sufficient to establish grounds for divorce. Normally, however, rude words alone will not suffice.

Cruelty constitutes the basis for a divorce from bed and board and can be filed immediately after the parties separate. After one year has elapsed from the time the act(s) of cruelty were committed, grounds will exist for a divorce from the bond of matrimony.

Divorce from the Bond of Matrimony

a. Separation divorce — the "No Fault" divorce

While grounds for divorce traditionally implied misconduct by one or the other spouse, modern divorce laws do not require “fault” grounds for a divorce to be granted. A “no fault” divorce from the bond of matrimony may be awarded upon a showing that for more than one year one of the parties intended to and the parties have continuously lived separate and apart without any cohabitation. If the parties have entered into a Property Settlement or Separation Agreement and there are no minor children, the time period is reduced from one year to six months.

Although separation provides a "faultless" ground for divorce, fault may still be an issue when spousal support (alimony) is being sought or can be a factor in determining the division of marital property. Further, a judge is free to award a divorce on fault grounds even though "no fault" separation grounds exist, conversely a judge is free to award a “no fault divorce” even if fault grounds exist.

b. Adultery, sodomy, or buggery

Proving adultery is very fact-specific. The evidence must be strict, satisfactory, and conclusive that the other spouse did in fact engage in sexual relations with another person. While there must be some corroboration of the testimony of a spouse to prove adultery, "eyewitness" testimony as to the adulterous acts is not required. In fact, most cases of adultery are proven without eyewitness testimony by using other evidence of the circumstances involved. Sodomy is a sexual act, other than intercourse, such as oral or anal sex. To be grounds for divorce, it must be committed with someone outside the marriage. Buggery is bestiality or a sexual act against nature. The standard of proof for these grounds is the same as that for adultery. Suspicion or speculation is not enough.

The "guilty" spouse has a number of "defenses" to the charge of adultery, sodomy, or buggery. If the guilty spouse can successfully establish any one of these defenses, then a divorce will not be awarded on these grounds. These are very fact specific and should be reviewed with an attorney.

c. Conviction of a felony

If a spouse has been convicted of a felony, sentenced to confinement for more than one year, and is in fact confined, then the other party has grounds for a divorce from the bond of matrimony as long as he or she does not resume cohabitation with the guilty spouse after knowledge of the confinement.

Annulments

Unlike a divorce which dissolves a valid marriage, an annulment is a legal decree that a marriage is void. Annulments are granted only in limited circumstances such as a marriage entered into because of fraud, duress, or coercion. An annulment cannot be granted merely because the marriage is of short duration, and legal annulments are normally not granted for "religious" reasons.

2. What Property Rights are Created by Marriage and Divorce?

Virginia statutes now provide for the "equitable" distribution of the marital property between the parties at the conclusion of the divorce. "Marital property" consists of all jointly-titled property as well as all other property, other than separate property, acquired by either or both of the parties from the date of the marriage through the time of the final separation. "Separate property" is property owned by one party prior to the marriage, property acquired after the parties have separated, or inherited property and/or gifts to one party from a third person. Where "marital property" and "separate property" are mixed together or where the value of "separate property" is increased through the active efforts of either party during the marriage, then such property may be classified as "marital property" or as "part marital and part separate" property.

In equitably dividing the marital estate, the courts may order monetary awards to one of the parties, divide the property, order the property sold, or transfer jointly-titled marital property to one of the parties. Under Virginia's system of "equitable distribution," the court is not required to divide the marital property on an equal basis. Instead, the court will consider various factors listed in the Virginia equitable distribution statute, including the relative monetary and non-monetary contributions of each of the parties to the well- being of the family and to the acquisition and care of the marital property. Pensions and retirement plans that were accumulated during the course of the marriage are also subject to division by the court as part of its equitable distribution award. However, by statute, neither party can receive more than one-half of the amount of the other party's pension or retirement plan that accumulated during the marriage.

3. When is Spousal Support Awarded?

Given the increasing changes to both the law and society, this area of divorce law is in the process of some revision. While a party who commits adultery is at risk of not receiving spousal support, under recent changes in the Virginia law, the fault of a spouse in causing a divorce may no longer be a complete bar to obtaining spousal support. The court will consider the cause of separation as a factor in determining whether or not to award spousal support.

Spousal support is not awarded to punish a guilty spouse. Rather, it is provided to lessen the financial impact of divorce on the party who is less financially independent. The amount awarded for support depends upon such factors as the respective ages of the parties, assets and earning potential of the parties, and the duration and history of the marriage. The court may award spousal support in periodic payments and/or in a lump. Periodic payments could be awarded for either a set number of years or an indefinite period of time. Spousal support set by the court is subject to modification in the future upon a change in the circumstances of either party. Spousal support does not have to be awarded when the divorce is granted. Instead, the parties may seek a "reservation" of the right to seek spousal support in the future. This reservation will generally last for one half of the length of the marriage.

4. Who Receives Custody of the Children?

This is the crucial issue in most divorces. In determining the custody of minor (under 18) children, the court is guided by one standard: the best interest of the child. The court may award "joint legal custody" where both parents have a role in making decisions for the child, or "sole legal custody" where one parent is ultimately responsible for making decisions in the child's best interests. Custody will not be given to a parent as a reward or deprived from a parent as a punishment. Rather, custody will be awarded to the parent who is most adaptable to the task of caring for the child, and who is able to control and direct the child. Further, custody may be changed if there is a material change in circumstances after the date of the divorce.

Factors considered by the court when awarding custody may include the age of the parent and child, the physical and mental condition of each parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live, and the child's wishes if the child is of sufficient age, intelligence, and maturity to make such a decision.

Another important factor to the court in establishing most custody arrangements is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children's lives. Often the court will fashion living arrangements such that the child, at least during the school year, will reside primarily with one parent. The other parent will have scheduled time with the child. Time sharing between the parents will be set by the court if there is a dispute and the parents cannot voluntarily agree upon satisfactory arrangements.

5. What are the Child Support Obligations?

Each parent is expected to contribute to the support of the minor child.  Depending on the time sharing schedule, the difference between the parties’ incomes, and other factors, there may be a child support payment that is owed between the parents. The court is guided by the needs of the child and the ability of the supporting parent or parents to pay. The use of the state child support guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The award is subject to change so long as the obligation to support remains. The child support amount may be increased or decreased if a material change occurs in the circumstances of either or both of the parents or of the child. Depending on the time sharing schedule, the court may use a “shared custody” guideline (where both parents have more than ninety days per year with the child) or a “sole custody” guideline, where one parent has fewer than ninety days per year.  Both guidelines take into account the cost of work-related childcare and health insurance premiums for the child. The court may also require a party to maintain an existing life insurance policy to provide financial security for a child in the event that the parent obligated to pay child support dies. The court can also apportion tax exemptions for the children between the parties.

6. What is a Property Settlement Agreement?

Rather than having the court rule upon the issues in the case, parties have the option of reaching a voluntary agreement resolving their concerns raised in the divorce. The court will enforce the agreement once it is in writing, signed, sworn to by both parties, and properly notarized. Oral agreements dividing the marital property may also be enforceable, but only if they meet certain strict requirements.

A Property Settlement Agreement is a written contract between the parties that sets forth their rights, duties, and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney's fees, custody of their children, and child support. Such agreements are encouraged since they may amicably settle the rights of each spouse in the estate and property of the other. An attorney's skill and experience can be especially helpful in negotiating and drafting a fair, just, and reasonable Property Settlement Agreement for the parties and their children.

7. What are the Court Procedures?

Controversies over custody, child support, and spousal support are usually heard before a judge of a circuit court. In some cases, such as where no grounds for divorce yet exist, such matters may be heard in a juvenile and domestic relations district court, independent of the suit for divorce. Depending upon the practices in a given locality, evidence in a divorce case may be taken in the office of an attorney representing one of the parties, in the office of a commissioner appointed by the court to take the evidence, or in a courtroom before a judge.

8. Are Attorneys Necessary? Who Pays the Fees?

Although an attorney is technically not required in a divorce proceeding, each spouse should obtain separate legal counsel if there are issues in the divorce that may be contested, property rights need to be determined, or the custody of the children is in dispute. The same attorney cannot represent both sides in a divorce case because there will be a conflict of interests.

A party who employs an attorney should discuss with the attorney his or her fees and make satisfactory arrangements to pay them. Quite often, a lawyer will require an initial payment made prior to the attorney starting work, called a retainer.

Depending on the circumstances, one spouse may be called upon to pay or contribute to the attorney fees and court costs incurred by the other. Whether either party has to pay all or a portion of the other party's attorney fees are matters left to the discretion of the court.