FAQ’S
This is only a list of very general questions and broad answers and is not a substitute for legal services or advice and does not create an attorney-client relationship. If you have specific questions about your family law situation and want help, please contact Gardner Gaye Law PLLC and we’ll be happy to arrange a consultation.
GENERAL
Q: Can I do this myself?
A: Sure! Especially if you don’t have children, own property, and agree with your soon-to-be-ex spouse about how to proceed, your divorce should be simple, and you won’t need to pay for an attorney. But if your situation adds even one of those things, it becomes more complicated. Divorce and custody orders can have long-lasting consequences, so it can be worth having an initial consultation with an attorney, just to be sure that you know what you’re getting into before deciding to proceed pro se (representing yourself).
Q: Why is this so expensive?
A: There are many, many reasons why family law cases can become very expensive, very quickly, but the most common reason is that in order to divide up your assets and debts, we must know what assets and debts exist and to do that, we must conduct discovery. If both sides don’t do what they should do in discovery, things start getting very expensive. Part of every good attorney’s job is to explain this to you up front and as the process of your case unfolds.
Q: What’s a “retainer?”
A: A retainer is more properly called a trust account and it’s an up-front deposit of sorts that you make on your fees. That money goes into an IOLTA account, which is a special account where any interest earned goes toward funding legal aid programs in Virginia (you can learn more here https://www.lscv.org/iolta/ if you’re interested), not to the attorney. The attorney then bills to that trust account instead of having to bill to the client for every hour earned. Especially when we’re in the thick of discovery or trial prep and the hours are piling up, it saves everyone - including you - a lot of headaches to do billing this way! Any unearned trust account funds go back to you at the end of the case.
Q: OK, so what do YOU bill?
A: I bill at an hourly rate that depends on many factors, but mostly the type and complexity of your case. I do not do flat fee cases because family is just too unpredictable and we cannot do family cases on a contingency fee. I will always discuss my hourly rate and trust requirement with you before we sign an engagement agreement because I know that’s a key factor in your decision in hiring any lawyer. Although it’s impossible to accurately predict the total cost of a family law case at the outset, I will discuss all of the variables with you and will always be honest with you about the ways that you can save costs or when I think that costs cannot be avoided. We also accept LawPay!
Q: What is "discovery," why is it so intrusive, and do I really have to do it?
A: Discovery is the formal process of gathering information from the other side that is “reasonably calculated to lead to the discovery of admissible evidence.” In a divorce, I say that to divide up your stuff, we have to know what stuff you’ve got. It’s the process of digging into your life to see what evidence might be there that we might eventually use for trial. If the other side sends it to you (“propounds it upon” you), then yes, you MUST respond and if you don’t, you can be held in contempt of court and end up paying thousands of dollars of the other side’s attorney fees. You are not required to send it to the other side, but without doing it, you essentially go into trial blind and it’s very, very unadvisable.
Q: Can the court order the other side to pay my attorney fees?
A: Yes, and vice versa. There are several instances when the court can order one side to pay the other’s attorney’s fees, but it’s not guaranteed. We can and will discuss this as part of your overall case plan and to be sure that you’re getting the best representation and the best outcome that you can.
Q: I want to leave this relationship, but I don't even know where to start - can you help?
A: I can and will. I have links to resources for domestic violence and housing agencies and contacts on the Resources page on my website to get you started and will be happy to set up a consultation to talk with you about your more specific needs, if you’d like.
Q: I'm not sure what I've experienced is domestic violence - how do I know?
A: PLEASE check out the links on my Resources page – domestic violence is often more subtle than most people know! It’s actually NOT about hurting someone or causing them pain, it’s about power and control more than anything else. It often starts with subtle manipulations, which is why the term “gaslighting” has become so popular, and things like isolating you from your friends and family.
Q: I hate them and I want to destroy them. Will you help me?
A: While I understand the impulse, NO, I will not help you be vindictive. I will help you protect yourself and your family and move forward in a positive way!
DIVORCE
Q: How long until I can be divorced?
A: In Virginia, if you have kids together, you cannot be divorced in fewer than 12 months after your date of separation. If you don’t have kids together, you can be divorced 6 months after your date of separation IF you have a signed agreement with the other party. There are some exceptions, but they are VERY limited and difficult to prove.
Q: I cannot afford to support myself during the separation period until we can file for divorce – what can I do?
A: Virginia does not have legal separation but does have “divorce from bed and board” (“a mensa et thoro”) and other remedies that together function similarly to legal separation. We would be happy to talk through your situation to help you figure out what might work best for you!
Q: They cheated - does that matter?
A: Virginia still has fault-based divorce, including adultery. If you can prove adultery, which is not as easy as it sounds, then that can have legal implications in your divorce, including being a bar to spousal support.
Q: Can I move out of Virginia before the divorce is done?
A: You can, but if you have children and there is a custody order, you will need the court’s permission for the children to move unless the other party agrees.
Q: Who gets the house?
A: That depends on several factors, not least of which is who can continue to pay for the house after the divorce.
Q: I don't want them getting my retirement - can we make that happen?
A: In most cases, if your spouse supported you in some way during your marriage, even if not financially, they are entitled to some portion of your retirement income in your divorce. There are many, many factors to consider in a divorce that can be negotiated, though, so it’s important to discuss this in the full context of your divorce action with your attorney.
Q: I took care of the home during our marriage and now I don't have money to take care of myself during this divorce, let alone pay for an attorney - can the court order the other side to help me financially?
A: Yes! In a divorce, we can request an advance of attorney’s fees from the other side, especially if you were unemployed during your marriage.
Q: How long do my significant other and I have to live together to be common-law married?/Does VA recognize common law marriage?
A: Virginia does not recognize common law marriage.
CUSTODY
Q: Do I have to pay child support?
A: Yes. It’s your child’s right. The consequences for failure to pay child support can be severe, so in addition to paying it because your child needs to be supported, this should be one of your highest-priority bills.
Q: My friend's cousin gets way more in child support than I do - what gives?
A: For the most part, child support calculations are “just math,” but it’s a lot of math and you would need to run a calculation for your specific situation to know exactly what factors contribute to your ultimate child support payment amount. I have links on my Resources page to the Virginia Department of Child Support Enforcement website, where you can find more information about calculating child support.
Q: I may need counseling - will they use that against me in the custody fight?
A: They can try, but I will ALWAYS argue that pursuing anything that makes you a healthier, more stable parent is in the best interests of your children and, therefore, is nothing but a positive thing.
Q: My ex's new significant other is the worst - can I prevent them from being around my child?
A: Generally speaking, no. There’s a Constitutional right to “free association” between adults. If, however, that person is an actual danger to your child and we can prove it (e.g. convicted of crimes involving children, etc.), then we can discuss steps to ask for a court order to bar contact.
Q: What is custody/visitation/parenting time?
A: Legal custody is who makes the big decisions for the children – where they go to school, which doctors they see and if they need a major procedure, etc. Physical custody is who the children live with, and visitation/parenting time is who the children spend time with, when. Without a court order, parents have equal legal and physical custody rights, so if you don’t have a court order and the other parent doesn’t return your children as agreed, the police will probably tell you to “get a court order” to return them to you and do nothing else as long as there is no immediate physical danger.
Q: My child’s other parent lives in another state and hasn’t seen them in months. Do I need to file for custody?
A: If you are content with the status quo, then you don’t NEED to take legal action. If you are concerned that the other parent may come and take your child, if you need to get a passport for your child without the other parent’s signature, or if you have other concerns, then you will need sole legal custody, which requires a court order. Even if you don’t know where the other parent is living, we can discuss the steps necessary to file a case to determine custody of your child.
Q: I live in Virginia, but my child’s other parent lives in another state. Where should we file?
A: That depends! Interstate issues get complicated because they depend on a lot of variable factors but are not impossible – please contact us to arrange a consultation so we can discuss your specific situation.
Q: If I want to get my child a passport, do I need the other parent's permission?
A: If you do not have court order granting you sole legal custody, then generally the answer would be yes.
MILITARY-SPECIFIC
Q: What's a 20/20/20 spouse?
A: A 20/20/20 spouse is a military spouse who was married to a servicemember with 20+ years of creditable service for 20+ years for at least 20+ years of that creditable service. This entitles that spouse to certain benefits after divorce to which they would otherwise not be entitled.
Q: I'm a 100% P&T disabled veteran - can they get any of my disability?
A: No, not to your disability payments after divorce.
Q: What happens with my Survivor Benefit Plan after the divorce?
A: That depends on several factors, including your retirement status and, if you’ve retired, how you designated your soon-to-be ex upon retirement. Generally, SBP designation ends upon divorce unless otherwise designated within a specific time period by the servicemember/veteran and/or ordered by a court.
Q: If I leave my active-duty spouse, will I lose my dependent benefits during the separation?
A: NO – you cannot lose your dependent benefits until you are divorced. We can talk about your options for housing, spousal support, child support, etc. if you need to separate while your divorce is pending!