As always, please read my disclaimer before reading this post by following the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia. Finally, please note that at the end of this post, there will be a call for readers to contact me with questions - please feel free to do so.
Introduction
Two weeks ago, I got hit with a nasty case of writer's block, and used that opportunity to do a brief FAQ on this blog. That post turned out to be substantially more popular than I expected it to, and now that this blog is getting something of a readership I would like to actually spend some time providing content that you, the readers, want to see, instead of just whatever I happen to feel like musing about (although there will certainly still be plenty of that).
As a result, this week I'm going to introduce "ask the lawyer." It will be my call for you, my readers, to submit questions to me that you would like me to cover in my blog - either via an FAQ post, or a full post. However, since just that call for action can hardly constitute a whole post, I will also use this opportunity to do Part II of my FAQ. As a result, below are some more of the questions I am frequently asked, and then an explanation of how "ask the lawyer" will work.
Why should my Complaint for Divorce ask for custody when I only want visitation?
A contested divorce case takes a long time to work its way through the court - sometimes up to a year, sometimes even longer. A lot can happen during that time. If you don't ask for custody in your Complaint, and then something comes up where suddenly you need custody, the process of getting it is more complicated. Moreover, asking for custody in your Complaint can provide a bargaining tool when you are attempting to negotiate other matters. It is better if your Complaint seeks too much than if it seeks too little - and this is true for more than just divorces.
Why do you no longer handle custody/visitation cases?
I get asked this a lot. As the "no longer" implies, I did used to handle such cases. In fact, I do still handle some, since I grandfathered in my previous custody/visitation clients when I stopped taking those cases. The brief answer is that when I handled these cases (custody especially), I would spend the two or three weeks leading up to the trial as a complete wreck - emotionally and physically. It affected my home life, and the quality of my work on other cases. After one particularly brutal case, I came away with a complete victory for my client - everything we asked for, and then some. Yet, I felt absolutely no satisfaction. If I was going to put myself through weeks of hell only to get nothing out of even a total victory, I asked myself "what am I really doing?" It was a bit of a personal crisis, but luckily I have an extremely understanding boss whose exact statement to me was "life is too short to do work you don't find professionally satisfying." So, we struck a deal that I could stop taking custody/visitation cases if I expanded my practice areas into other fields that our firm at the time did not have anyone working in. This is why there are things that my firm does which I don't (mainly custody/visitation), and why there are things that I do which the rest of my firm doesn't (mainly landlord/tenant, contract, debt collection and appellate work).
What happens if I don't file an Answer to a Complaint for Divorce within 21 days of being served?
Back in July, I did a post about what happens when you are sued. Since all divorces are conducted in the Circuit Court, the Circuit Court timeline is applicable. But the question becomes, what does being "in default" in a divorce case, where there is not a money judgment being sought in the traditional sense, really mean? Well, the answer actually is, generally, very little.
You cannot obtain a divorce by default. So, if you file a Complaint and get no Answer, you still have go through the process of proving to the court that you have been separated long enough, etc. If you are seeking support, you will still need to establish that you should get support and how much support you should get. It is just easier if you are unopposed. Now, if you are on the other end and you want to prevent that from happening, but you were late, you still have some options. Again, you are never "in default" in a divorce case - however the case can proceed without further notice to you, per a law passed last year. Further, all allegations in the Complaint can be taken as true without you having a right to rebut them, although courts practically never do that.
As long as the divorce has not already been taken all the way to its end and a Final Decree been entered, you or your attorney can file a "Motion for Leave to File Responsive Pleadings Out of Time." This will almost always be granted - allowing you to file an Answer and participate in the case. Be aware, however, that if the case has been pending for a while, you likely will not get a continuance on a final hearing date, and you may have missed your chance to send discovery requests to the other side.
What is "Discovery" anyways?
Discovery is the process by which each side in a civil case gets to make the other side give them information they need in order to prepare their case. Discovery comes primarily in four forms - Interrogatories, Requests for Production, Requests for Admission and Depositions.
Interrogatories are a list of questions that the other side must answer in writing and under oath. Requests for Production require the other side to turn over documents and other things to you that may be relevant to the case. Requests for Admission require the other side to admit that certain statements or true, or deny that they are true. Depositions force the other side to come into your attorney's office (or some other agreed place) and go under oath and answer questions in front of a court reporter.
Interrogatories, Requests for Production and Requests for Admission generally need to be responded to within 21 days of being received. The penalty for being a little late, however, is usually minimal. With Requests for Admission, however, that is playing with fire, since technically even being a day late on those can cause a court to deem all of the statements as "admitted." Further, if you deny a statement in the Requests for Admission, but the statement is later proven to be true, you can be forced to pay the attorneys' fees the other party accrued proving that statement to be true.
Most civil litigation attorneys will tell you that cases are usually won or lost in discovery. Making sure you ask the right questions and answer questions the right way can be key to your entire case.
I've been sued in General District Court and have demanded discovery, but the other side is refusing to cooperate. What can I do?
Nothing, I'm afraid. Virginia law has the notion that courts below the Circuit Court should proceed quickly and smoothly, and that the cases they include do not warrant discovery. Whether this is accurate or not, it is the law we have. So, discovery is only available as a right in the Circuit Court (this includes, by the way, appeals to the Circuit Court from a lower court). In the General District Court, you're stuck with the Summons, anything attached to it, and a Bill of Particulars (or Answer and Grounds of Defense) if pleadings were requested at the return day. In the Juvenile and Domestic Relations District Court you can request the right to conduct discovery (which is almost always granted), but even then you are not permitted to do depositions. So, if you've been sued in the General District Court and want discovery, the best hope you have is to convince the other side that if they send you these things, you might be inclined to settle - then they might do it voluntarily. You cannot, however, force the other side to send you anything.
Ask the Lawyer
So, I think that's a good number of questions to cover today. Now comes what I discussed earlier - ask the lawyer. The way this works is that you send me any question you have that you think I might know the answer to about the legal system or various areas of law. You can do this by sending your questions to me at my e-mail address - sleven@thebaldwinlawfirm.com - or by leaving a comment on this blog post (I may not approve the comment to be visible, but I will still receive it). Then, I will either respond by telling you it is something that I do not know the answer to and an explanation of why, along with, hopefully, some advice on where to go to get an answer, or I will save your question and answer it either with a full blog post or with an FAQ. If I write a post or FAQ in response to an ask the lawyer question, I will indicate I am doing so, and I can give you personal credit if you wish (you need to let me know when you ask the question, along with how detailed you would want the credit to be in terms of your name), and I will try to e-mail you to let you know I have done so (although I cannot promise that I will remember to do this).
This will not be the last time that I do an "ask your lawyer" specific call, although you should consider me open to receiving "ask the lawyer" questions at any time, whether I've called for it in my last blog post or not.
This is not, however, a call for you to ask me about your specific legal case. The statements I give on this blog, as explained in my disclaimer, are not legal advice, and cannot be specific to your case. If you have a question about your specific case, you'll need to set up an initial consultation, which you can do by calling (703)281-0134, or by e-mailing me at sleven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour.
I look forward to receiving your questions!
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