This blog is the third in a series covering the Divorce Process. Specifically, this blog looks at Discovery; what is Discovery, its purpose in the divorce and a few of the common types of discovery filings used in divorce proceedings. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County, and you are required to answer Discovery, please contact my office and schedule a free consultation.
What is Discovery?
Discovery is a general term that includes a variety of filings to obtain information and documentation from the opposing party. The most common filings are Requests for Interrogatories and Productions of Documents. Discovery though may also include Requests for Admissions, subpoenas and releases for private documentation. The purpose of discovery in a divorce is to gather information about the other party, the factual basis for the grounds of divorce and finally information on the equitable assets of the marriage. When combined this assists the parties in narrowing the issues in the divorce.
Interrogatories & Production of Documents
Interrogatories are a series of questions which the opposing party must answer under oath. Typically these include questions about the financial and equitable matters between the parties, but may also include questions concerning the grounds for divorce. Requests for Production of Documents are a request for the opposing party to produce documents either relating to the Interrogatories or other relevant documents to the Divorce.
Requests for Admissions
Requests for admissions are also useful in a divorce. A Request for Admissions is simply a list of true or false questions that the opposing party must answer under oath. Like most areas of discovery, requests for admissions allow the parties to narrow the issues in a relatively inexpensive means.
Subpoena Duces Tecum
A subpoena duces tecum, or subpoena for production of evidence, is another means of discovery that can be used during a divorce. Virginia law allows attorneys to issue subpoenas without the Court's permission; however, an opposing party may object through a Motion to Quash, and a hearing must be held to determine whether the party whom the subpoena is issued against must produce the documents.
Releases
Finally, Releases. These are simply authorizations signed by the opposing party that allow the party requesting the documents to go directly to a source, using the release, to obtain what maybe privileged documentation. This can sometimes result in useful information regarding both equitable matters in the divorce as well as the fault based grounds for the divorce.
Discovery is an important part of the divorce process. It's purpose is to gather information regarding equitable assets and grounds of divorce. It allows a party to narrow the issues in the divorce. There are a variety of discovery filings in a divorce, the most common are request for interrogatories and production of documents. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County please contact Waltrip Firm, PC for a free consultation.
Wednesday, January 29, 2014
Saturday, January 25, 2014
The Divorce Process - The Answer
This blog is the second in a series covering the Divorce Process. Specifically, this blog looks at the Answer; the purpose of the Answer and what should be included. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County, and you are required to file an Answer to a Divorce Complaint, please contact my office and schedule a free consultation.
Once a Divorce Complaint has been filed and served, the opposing party is then required to file an answer. An Answer must be filed within twenty-one days of the party being served. It is important to answer each allegation in the Divorce Complaint otherwise the allegations will be accepted as undisputed. Additionally, if a party fails to respond, after being served, that party will be considered in default and the complaining party may move for judgement on the basis of the facts they have alleged.
Two of the most important allegations in an Answer that almost always require are the date of separation and the factual basis for the grounds of divorce. Answers regarding the date of separation are important as this will almost always establish when assets of the marriage are separated and valued. The difference between a few months, sometimes a year, can mean a substantial change in the equity in a home, the value of a retirement, or the length of spousal support. Also, whether or not the allegations are confronted could result in the finding of a fault based grounds of divorce where one does not exist.
In addition to an Answer, most attorneys will respond with a Counter-Claim. This provides an opportunity for the responding party to allege alternative facts and grounds for divorce while also requesting relief.
If you have received a complaint for divorce and need an attorney in Williamsburg, York County, or New Kent County to respond with an Answer and/or Counter-Claim please contact Waltrip Firm, PC and schedule a free consultation.
Once a Divorce Complaint has been filed and served, the opposing party is then required to file an answer. An Answer must be filed within twenty-one days of the party being served. It is important to answer each allegation in the Divorce Complaint otherwise the allegations will be accepted as undisputed. Additionally, if a party fails to respond, after being served, that party will be considered in default and the complaining party may move for judgement on the basis of the facts they have alleged.
Two of the most important allegations in an Answer that almost always require are the date of separation and the factual basis for the grounds of divorce. Answers regarding the date of separation are important as this will almost always establish when assets of the marriage are separated and valued. The difference between a few months, sometimes a year, can mean a substantial change in the equity in a home, the value of a retirement, or the length of spousal support. Also, whether or not the allegations are confronted could result in the finding of a fault based grounds of divorce where one does not exist.
In addition to an Answer, most attorneys will respond with a Counter-Claim. This provides an opportunity for the responding party to allege alternative facts and grounds for divorce while also requesting relief.
If you have received a complaint for divorce and need an attorney in Williamsburg, York County, or New Kent County to respond with an Answer and/or Counter-Claim please contact Waltrip Firm, PC and schedule a free consultation.
Wednesday, January 22, 2014
The Divorce Process - The Complaint
This blog is the first in a series covering the Divorce Process. Specifically, this blog looks at the Divorce Complaint; the various types, and what is included in the Complaint. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County, and you are considering filing a Complaint for Divorce, please contact my office and schedule a free consultation.
Many times a Divorce commences with the filing of a Complaint. There are certain statutory requirements that a complaint must meet. If the complaint does not meet these very specific and necessary requirements it can either be rejected/dismissed by the Court, or the opposing party may file a demurrer and have the complaint dismissed. A few of the requirements include the names and addresses (if known) of the parties, that both parties are of the age of majority and can be sued, and also that the court has both subject matter and personal jurisdiction over the parties. There are also requirements when one party is a member of the Armed Services.
The Complaint must make specific factual statements that are the basis for divorce. If the basis is adultery, cruelty, or other fault based grounds, the filing party must allege the facts that give rise to the fault in the complaint. If a party fails to allege these facts, they may request to amend the complaint later, but maybe barred from doing so. It is best to make all well-grounded allegations in the initial complaint to avoid losing it later. This includes when making the prayer for relief.
The Complaint must also make a specific prayer for relief. This tells the Court what type of outcome the filing party is requesting. This may simply be a request to be divorced, but often it includes an award of spousal support, child support, physical custody of the children, attorney's fees, and equitable distribution of the marital assets. Like the factual basis for the divorce, if prayers for relief are left absent the filing party may be barred from amending the complaint at a later time.
The Complaint is only the first step in the process of divorce. However, it is important that the complaint have all of the necessary requirements regarding the parties, the basis for the divorce, and the relief requested. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County, please contact my office and schedule a free consultation.
Many times a Divorce commences with the filing of a Complaint. There are certain statutory requirements that a complaint must meet. If the complaint does not meet these very specific and necessary requirements it can either be rejected/dismissed by the Court, or the opposing party may file a demurrer and have the complaint dismissed. A few of the requirements include the names and addresses (if known) of the parties, that both parties are of the age of majority and can be sued, and also that the court has both subject matter and personal jurisdiction over the parties. There are also requirements when one party is a member of the Armed Services.
The Complaint must make specific factual statements that are the basis for divorce. If the basis is adultery, cruelty, or other fault based grounds, the filing party must allege the facts that give rise to the fault in the complaint. If a party fails to allege these facts, they may request to amend the complaint later, but maybe barred from doing so. It is best to make all well-grounded allegations in the initial complaint to avoid losing it later. This includes when making the prayer for relief.
The Complaint must also make a specific prayer for relief. This tells the Court what type of outcome the filing party is requesting. This may simply be a request to be divorced, but often it includes an award of spousal support, child support, physical custody of the children, attorney's fees, and equitable distribution of the marital assets. Like the factual basis for the divorce, if prayers for relief are left absent the filing party may be barred from amending the complaint at a later time.
The Complaint is only the first step in the process of divorce. However, it is important that the complaint have all of the necessary requirements regarding the parties, the basis for the divorce, and the relief requested. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County, please contact my office and schedule a free consultation.
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