Thursday, November 3, 2011

Q & A: Contesting a Divorce

Q: i want to contest the divorce because i dont want a divorce.

A: Ultimately you cannot prevent your spouse from obtaining a divorce in Virginia. However, you do have a right to contest any facts alleged in the divorce pleadings that you genuinely dispute, as well as the right to affirmatively state that you do not desire a divorce, as part of your responsive pleadings to the complaint for divorce filed by your spouse.

The burden will be on the person seeking the divorce to prove the facts that support the grounds upon which they are seeking a divorce be granted. If the basis for the divorce is "no fault" (i.e., having lived separate and apart, continuously, without cohabitation or reconcilliation, for a period in excess of one year, with the intent on the part of at least one party to the marriage that the separation be a permanent one and at least one of the parties desires that a divorce be granted), then the proof required by the court is pretty minimal and only requires the testimony of the party seeking the divorce and one corroborating witness.

Even though the divorce would be granted over your objection, you can have your objection noted on the final decree of divorce or have the divorce decree include a statement that basically states that the divorce is being granted over the objection of wife/husband (as the case may be). Again, this will not prevent the divorce from becoming final or alter the validity of the divorce, but might make you feel a little better to see that language included in the divorce decree. Courts have allowed me to include these types of objections in final decrees whenever I had a client who objected to the divorce on moral and/or emotional grounds in the past.

Please note that your answer to the complaint for divorce, as well as any affirmative relief you are seeking, must be filed within 21 days after the complaint is served on you. Please also note that, despite your objections/contest to the divorce, it is important that you protect all of your legal interests and request the court to award you any and all relief to which you may be entitled should a divorce be granted. Such rights may include, but not be limited to, temporary and permanent spousal support (or reservation of right to same), exclusive use of the marital residence, maintenance of health and/or life insurance, payment of maritals debts, distribution of marital property (including retirement accounts, pensions, or other retirement benefits), attorney's fees, and determination of custody/visitation/child support if you have minor children and/or any disabled adult children.

In order to ensure your rights are protected, I recommend that you consult with a Virginia family law attorney as soon as possible.

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    1. Thank you again for your very nice comments, Monaliza! I hope that you will find future blog posts of interest, as well. The latest blog (posted on August 15, 2012) details some of the evidentiary issues that arise in litigation, particularly with regard to the non-protected nature of Facebook posts, emails, and other types of communication in a divorce or other family law related case. This particular blog entry was prompted by a story that appeared in the day's legal news feed concerning a woman who was just convicted in Virginia for the death of her child as a direct result of posts she had made on her Facebook page. However, the blog entry goes into much further detail concerning what is and what is not a privileged communication and what types of evidence one spouse or parent may be able to gather and use against another spouse or parent. The link to this latest entry is @

  2. Ma'm extremely sorry for spoiling your blog post... I have done nothing wrong - no abuse, no extra marital.. no drink no smoke .. is there a way i can save my marriage ...
    I am into a situation where my wife has suddenly moved out of our rented apartment with our two kids - one is 2 year old and other is 2 months old. Her parents who are on tourist visa supported the move. Now, from the developments it seems like they are forcing me to go to court and file for divorce by not sharing her new address, making it difficult for me to contact kids/her. We were married in India under Hindu law and are on work visa (both are on H1B) in US. I am not interested in divorce particularly when we have 2 kids involved. I feel that she is working under her parents influence who are greedy about alimony and child support so on. I understand that i am left with either an option to wait and face evenutality as the separation period crosses onew year or to go to court and file for child visitation to force the issue sooner and probably get marriage counselor involved; is there a way that i can request court to interfere and force marriage counseling on the grounds that she left and moved to a new apartment , not letting me meet the kids. Here i am trying to make our marriage work. Or can i force US government to migrate her to India , Should i bring my kids to India and then ask her to come... I feel that there are better chances of our marriage working if she is in india 'coz of the relatives,close family, constant reminder of cultural values...