As always, before reading my post, please review my disclaimer by clicking on the link above or clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
About a month ago, I did a blog post about 5 big legal mistakes I see people make in their divorces. I got some very positive feedback about this post, and my blog analytics indicate it's currently my most read post from the past six months or so, which is pretty impressive considering how new it is. It occurred to me, however, in the time since that there are still more legal mistakes people make in their divorces that can have devastating consequences for them, and so I decided I needed to do a follow-up post to cover some more of those crucial errors I see all too often. Fortunately, the biggest difference between this post and the one I did a month ago is that these mistakes can be fixed, they just have to be caught in time.
1. Failing to request spousal support in your pleadings
If you are entitled to spousal support, attempt to negotiate with your spouse without success, prepare a full day's worth of evidence on the topic, and go to trial ready to fight for your support, how surprised will you be if you find out you can't get that support, no matter how strong your case is, due to a technicality? The reality is, I've encountered this a number of times in my career already - with every case but one being cases where the person wanting the support also did not have an attorney.
It is a basic rule in law that in court, you cannot get what you do not ask for. Moreover, the way that you ask for something is in a written document called a "pleading." "Pleadings" include a "Complaint" initiating a case, an "Answer" to a Complaint, and a "Counter-Complaint." When you go to trial (as opposed to hearings on motions, etc.), it is the overarching pleadings initiating the case that determine what you have asked for at trial. As a result, in order to get something at trial, you must have asked for it in your initiating pleading.
In 1986, the Virginia Court of Appeals ruled (correctly under the law) that a Complaint requesting a divorce does not automatically include a request for or to determine spousal support. As a result, spousal support must be specifically requested. If none of the initiating pleadings (Complaint, Answer, Counter-Complaint, etc.) asks for spousal support, then the trial court cannot grant it, no matter how strong your case is. As a result, you are well served to include a request for spousal support in all of your initiating pleadings (for example, if you file an Answer and a Counter-Complaint, you should include the request for spousal support in both, not just in the Answer, in case the court later strikes your Counter-Complaint).
Fortunately, if you fail to do this, you will likely be able to correct it. Courts are required under Virginia Supreme Court Rule 1:8 to liberally grant motions to amend pleadings. Pretty much the only time you can expect a motion to amend to be denied is if you've either already amended a large number of times, or if you're extremely close to trial (say, a week or less away). I've even heard of cases where the motion to amend was granted at trial in certain extreme circumstances (for example, the other party also didn't realize support hadn't been requested and was prepared to go to trial on the issue). Nonetheless, if you discover you have this issue, you should move to fix it ASAP.
2. Failing to request a determination of spousal support when there is a J&DR Order
This issue is related to the first, but on the flip side. The Virginia Code allows spousal support to sometimes be obtained in the J&DR Court. Specifically, this is allowed when you are separated, but not yet divorced, and is frequently done shortly after separation when there's not really a good argument to file a divorce yet since you haven't been separated long enough.
Spousal support orders from J&DR Court have several disadvantages for payors, but perhaps the biggest is that a J&DR spousal support order is indefinite. It can be modified upon a showing of a material change in circumstances, but otherwise it cannot be set for a defined duration, unlike spousal support orders in a divorce (this is because, in theory, J&DR spousal support orders were designed to only last until the parties divorce). Moreover, the J&DR Court is supposed to only look at what is "appropriate... to protect the welfare of the spouse seeking support," which is a vastly different standard than the many factors (including the rule the payee spouse may have played in causing the breakdown of your marriage) the Circuit Court must consider in a divorce. For more about J&DR spousal support, see my blog post on spousal support.
Of some interest, however, is the fact that the Court of Appeals has ruled (I believe this is incorrect under the law, but it is current binding precedent and unlikely to be changed any time soon) that while J&DR spousal support can only be ordered for parties that are separated, not divorced, such a spousal support order survives the divorce of the parties, unless it is superseded by the divorce order. In other words, if J&DR spousal support is ordered, it can only be gotten rid of if the divorce decree issues a contrary spousal support order. If the divorce decree is silent on spousal support, then the J&DR spousal support order survives.
Now, as with a request for spousal support from a potential payee, a payor must request that the Circuit Court decide spousal support as part of his or her divorce initiating pleadings in order for the divorce court to have the power to issue a spousal support order contrary to the J&DR Order. Fortunately for the payor, if he or she makes such a request, the divorce court's order would supersede the J&DR Order, and would be treated like an original order (not a modification), so no material change in circumstances would need to be shown. So, if you are a payor under a J&DR spousal support order, you must request the divorce court to rule on spousal support if you want the factors considered and a defined duration award to be possible, otherwise you could be stuck with the J&DR order for a very long time. Fortunately, like with the issue in number 1, a timely requested amendment to include that request in your pleadings will likely be granted.
3. Failing to include provisions in a written order
For many first-time court litigants, it is surprising to learn that judges, especially in the Circuit Court, rarely write out orders. Instead, the parties or their attorneys write out an order capturing what the judge has ruled, and then the judge signs it. This is partially meant to lighten the load on judges who are already overworked, but also partially meant to allow parties to continue negotiating and attempting to settle their differences, especially if the court ruled a way that neither of them like.
This also sometimes creates problems for parties that are caught unaware. Specifically, there's a rule in law, followed very strictly in Virginia, that says "the Court speaks through its written orders." In other words, if the judge ordered something from the bench, but that order was not included in the written order that the judge signed, then it is as though the judge never gave the portion of the order that was not written down. I've had multiple potential clients come to me and say "the judge ordered my ex to do this and she hasn't, I want her held in contempt," only when I look at the actual order, there's nothing along those lines in it. The response I usually get is "yeah, it's not in the written order, but it's what the judge said," and I generally have to give them the bad news that if it's not in writing, then it's basically no order at all.
Now, there is a way to fix this. If it was simply an oversight on your part that the provision was not included in the order, then this is effectively a clerical error and you can ask the court to modify the order to include the provision. Now, if the other side argues that no, this was intentional, you need to be prepared to show the court both a) you did not intentionally agree to leave the provision out of the order, and b) that the court meant to include the provision. Frequently a can be accomplished through testimony, but b can be difficult - you usually need the judge to have a good memory, the judge to have taken good notes, or to have a transcript of the judge's ruling. Nonetheless, if your motion is granted, then the written order will be modified to include the provision, and can be enforced going forward.
Conclusion
Not all mistakes are immediately fatal in a divorce. Some have horrible results if they go uncorrected, but nonetheless can be corrected if caught in time. Mistakes like these are exactly why it is always a good idea to have an attorney when navigating a contested divorce. If you have made, or are afraid you have made, one of these mistakes and need to bring in an attorney to fix it, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour.
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