Questions and Answers about divorce

No. First we’ll have you and your spouse tell us what the basic facts and the issues are, then we’ll see what homework needs to be done, if any.

After your case is settled in mediation, the mediator will draft your agreed terms into a binding contract which you will present to the judge as a part of a no-fault divorce. Virginia law doesn’t allow our mediators to file your divorce. For a list of the steps in a divorce click here.

“Divorce can spark money problems for both spouses” reads the headline of an article in the Free Lance-Star newspaper (May 9, 2002, pg.D5). When couples split up, their two households cannot be managed as easily as their previous one household. Often it takes a close look at the budgets and a flexible arranging of the assets to find a solution acceptable to both parties. When you decide to let the judge decide for you and focus on proving your case in a courtroom battle, you give up your chance to explore the kind of creative options not available to a judge. As a part of the mediation process, its helpful to make a detailed review of your expenses, debts, monthly payments and balance of principal due. You might consider obtaining your credit report and credit rating from one of the following national credit reporting bureau’s:
Experian. Website: www.experian.com or call 1-888-EXPERIAN (888-397-3742)

Equifax. Website: www.equifax.com or call 1-800-685-1111

Transunion. Website: www.transunion.com

Mediation may be inappropriate if there is a history of physical abuse. If you believe you are a victim of verbal abuse, threats, intimidation, demeaning comments, condescending remarks, etc., call us for a pre-mediation screening. You might also call Empower House (formerly the Rappahannock Council on Domestic Violence) office at 540-373-9372 (24hr hotline:540-373-9373) or visit the National Domestic Violence Hotline website at www.thehotline.org

The decision of when and how to tell the children is just one of the many issues that the mediator will help you discuss and resolve. To avoid the anxiety, tension, and fear of mishaps when telling the children, some couples prefer to have the children attend a mediation session where the mediator can help assure that the situation remains calm and focused properly and that the children’s questions are addressed in a neutral manner.

1 Parents Are Forever, Revised Ed., © Shirley Thomas, Ph.D., Springboard Publications, P.O.Box 484, Longmont, CO 80501-484 ISBN 0-9646378-2-0, pg. 39
2 Ibid, pg. 42

Husband:
Wife:
Date of Marriage:
City & State:
Children’s names & DOB’s:
Date last lived together:
Last joint address:

Mediator disclosures:
(1) (s)he does not provide legal or financial/tax advice;
(2) any mediated agreement affects parties’ legal rights;
(3) (s)he encourages each party to consult with independent legal counsel at any time, and
(4) (s)he especially encourages each party to have individual, independent attorneys review any draft agreement prior to signing it or that each party should specifically waive the opportunity to do so since the agreement could have binding legal consequences on each party

The following are the matters that should be considered to be included in the terms of an agreement:

1) Living Separate Without Interference.

2) Real Estate.
a) Rented?
b) Owned?
c) Who stays there for how long?
d) Who pays what? Mortgage/upkeep/taxes/utilities/etc.

3) Automobiles.
a) Who has what Yr, make & model?
b) Who keeps which?
c) Who pays liens if any?

4) Other Tangible Personal Property.

5) Bank Accounts.

6) Retirement Plans, Other Assets & Benefits.

7) Omission of Property or Issues. (The mediator cannot ethically be responsible to assure that all issues are covered, only an attorney can do that)

8) Future Debts.

9) Credit Cards & Other Debts Assumed.

10) Caring for Children: What is your parenting plan/schedule?

11) Child Support.

12) College

13) Dependency Exemption and Other Tax Provisions*.

14) Insurance.
a) Health
b) Life

15) Spousal Support.
a) How much for how long?
b) What factors will trigger an adjustment and what kind of adjustment?*

16. Taxes*
    a. joint filing/separate
    b. refunds/penalties any past taxes owed

16) Subsequent Divorce & Effect of this Agreement.
a) Do you want the divorce judge to be able to change your agreement?

17) Disagreements.
a) Mediation
b) See Attorneys fees below

18) Effect of Reconciliation.
a) Do we want the agreement to remain binding even if we are deemed reconciled?

19) Additional Instruments:
a) Will we agree to sign over titles, release waived rights, etc.?

20) Entire Understanding.
a) Are there any “side” deals or agreements which we aren’t including in this document?

21) Attorney’s fees.

a) Who pays what, when, why and how much?

22) Binding Contract.
a) Binding when?
b) Is this agreement to be only our moral agreement until after we’ve had it reviewed by our attorneys?

23) Other issues:
* A financial planner or accountant may need to be consulted for the current law and/or ways to best benefit with tax law on divorce issues to allow maximum advantage to each party.

Custody Questions

When developing a co-parenting plan/schedule for custody and visitation under Virginia Code Section 20-124.3, asking yourself questions like these should help:

1. Give the names, addresses, phone numbers, age, relationship of all people who help you and your child with physical needs, transportation, daycare, etc. and emotional support and advice (people who you consider a part of your support group):
2. What are your work days and hours?
3. What time do you leave home to go to work and what time do you get back home?
4. Does your child have any special health needs?
5. Which parent has better skills in dealing with those health needs and why?
6. Name the child’s doctors and dentists.
7. Have you ever met the child’s doctors or taken the child to the doctor for regular checkups or during illness?
8. Do you believe the child receives adequate health care and routine checkups?
9. Who mostly takes the child to the doctors and dentists?
10. Do you claim that the physical health of a parent or child is an issue in regard to custody?
11. Do you or your spouse take any medication or have any health or addiction problem?
12. Are either you or your spouse under the care of doctors, counselors, etc.?
13. What is the level of care by you (scale of 1 to 5 with 1 being excellent and 5 being poor/neglected)?
14. What is the level of care by your spouse (scale of 1 to 5 with 1 being excellent and 5 being poor/neglected)?
15. Who has the better relationship with the child and why?
16. What is the child’s favorite food?
17. What time does the child get up and go to bed?
18. Who are the child’s best friends?
19. What are the child’s favorite activities?
20. What do you feed your child on a typical day?
21. How often do you take your child to a fast food restaurant?
22. What is the child’s clothing sizes (shirt, pants, hat, etc.)?
23. What are the names of your child’s doctors, dentist, etc.?
24. What are the names of your child’s teachers?
25. What are the child’s best and worst subjects in school?
26. What is your educational level? Your spouse’s?
27. Who helps with homework?
28. What is the name of your child’s backup babysitter/daycare provider for you? For spouse?
29. What is your role with your child now and in the future?
30. What is your spouse’s role with your child now and in the future?
31. How often do you communicate with the other parent?
32. What is the communication with the other parent like?
33. Which parent has the most flexibility regarding taking off from work for scheduled/planned field trips, etc.? For sudden illness or emergencies? For illness and emergencies, how long will it take each of you to get to the child’s school or daycare provider?
    

    The outline above includes issues that are typically included in a property settlement agreement prepared by the Mediation Center, Inc.

Statutory Factors Affecting Custody

VIRGINIA CODE § 20-124.3. Best interests of the child; visitation.

In determining best interests of a child for purposes of determining custody or visitation arrangements including any pendente lite orders pursuant to §20-103, the court shall consider the following:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role which each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

[The foregoing is only an excerpt of this code section. Check for latest updates.]

The above outline includes issues that are typically included in a property settlement agreement prepared by the Mediation Center, Inc.

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under § 20-107.3;
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
13. Such other factors, including the tax consequences to each party, and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.

1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
2. The duration of the marriage;
3. The ages and physical and mental condition of the parties;
4. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;
5. How and when specific items of such marital property were acquired;
6. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
7. The liquid or nonliquid character of all marital property;
8. The tax consequences to each party; and
9. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
10. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.