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The Nature of the Process in the "Independent Representation" Mode
It is because of the essentially "fait d' accomplis" and personal nature of the divorce (i.e., available, with time, if and when either party seeks to finalize the matter) occasioned by what is (and is not) involved in the "no-fault" grounds that the primary focus of the assistance of competent counsel is on the issues incident to dissolution of a marriage: support, custody, property division, etc.(8)
These "other" matters will be resolved in one of two ways (or some combination thereof): either by a Court, or by agreement between the spouses. It is because of the possibility of determination by a Court that the lawyer's focus, in advising and guiding his or her client, is, initially and ultimately, on what might happen if a Court were to pass on these issues.
The fact that (based on the facts provided to the lawyer!) the lawyer might view the probable results of Court determination of these issues to be within a particular range does not mean that the lawyer is attempting to impose his or her will upon the consultee/client. In the vast majority of divorce cases, most or all of these issues are in fact resolved by agreement; and often the manner in which the spouses actually agree to resolve one or some (or all!) of these issues differs substantially from what (one or both) lawyers have advised might constitute the probable range of the results of Court determination. This is, after all, still your life, money, property, children, etc., that are involved. Simply because the possibility of Court determination lurks in the background (looms ominously overhead, etc.) does not mean that one or both spouses will (fully) undertake the agony and expense of Court action ("the law" is not self-effecting; that is one reason why we have Courts and lawyers). And, even where one party later seeks to have part or all of the Agreement set aside by a Court, with only a relatively few exceptions (9), even the Judges usually will not second-guess the parties' resolution of these matters.(10)
The Agreement is properly termed a "(Separation and) Property Settlement Agreement" (or, sometimes, a "Custody, Support and Property Settlement Agreement, " or "Marital Settlement Agreement, " etc.). Most laypersons use the misnomer "legal separation" for the Agreement. Technically, "legal separation" is a lawyer's "term of art" for a type of Court Decree. Separation itself is not "legal" or "illegal" (although it may constitute "desertion"). As you will note if you complete perusing this summary, the primary focus regarding separation in this field is on (sufficient, final) physical separation. And one does not "file for a separation"; although optimally the first step is to receive advice from and to retain counsel in order to attempt to resolve the issues involved in a Separation and Property Settlement Agreement.
For the whole idea of the importance of (valid) "signature on the dotted line," especially in Virginia, is that, regardless of what transpired before or what happens after that time, in terms of (alleged) personal misconduct, the "divorce court" is without power to do or order anything that is contrary to what is contained in the Agreement (other than with respect to certain issues regarding the children).(8) I.e., once you have reached the "nirvana" of valid "signature on the dotted line," you should have achieved the "peace of mind" implied in layperson's misnomer, "legal separation."
Obviously, the less one has to go through to resolve these other issues, the less he or she will incur, in terms of both personal and financial expenditures. On the other hand, equally obviously, simply saying that reaching agreement with your spouse will minimize such expenditures does not mean you should do so, at any and all costs; and this goal is, often or usually, "a lot easier said than done." But, because of the ever present cost-benefit ratio equation involved in these matters (indeed, except for personal safety and issues regarding children, money is essentially all that is entailed; even "property" is, after all, convertible into monetary terms), attempting to help you to attempt to resolve these matters, in a reasonably fair manner, from the standpoint of your interests, as expeditiously and inexpensively as reasonably possible under the circumstances.
Optimally undertaken, this task should not witness the lawyer simply advising the client to do it by invoking steps A, B and C. While the lawyer is expected to be the source of the relevant legal knowledge and experience, the consultee/client is the repository of knowledge and experience in dealing with his or her spouse. The best approaches to these matters involve the lawyer and client planning and interacting together, somewhat akin to "war games" strategy sessions. And, in addition to attempting to avoid the agony and expense of the full-fledged in-Court "divorce war," where reasonably possible under the circumstances, this task optimally is undertaken with a view toward avoiding the agony/expense of a battle of even written correspondence between "legal eagles. " While, from the standpoint of protection of their respective interests, each spouse is very well advised not to undertake even "negotiations" without the assistance of their own counsel, there is no requirement that both spouses have counsel, for the Agreement to be binding.
This does not mean that individual lawyers can ethically "represent" both spouses in the preparation of an Agreement. In the "independent representation mode," usually the lawyer should not even see or communicate with the unrepresented other spouse -- lest any Agreement ultimately effected not be ,worth the paper it is written on." If, in the process, your spouse chooses to show the proposed Agreement to a lawyer of his or her choice, or to retain counsel to undertake negotiations (or other courses of action) on his or her behalf -- that is, of course, his or her prerogative.
8This does not mean that even "specialists" in this field operate "divorce mills"; Lawyers are ethically required to be attuned to the possibilities of reconciliation -- and to offer appropriate advice and take appropriate actions in this connection. Usually, however, by the time of consultation with a lawyer, one or both of the spouses believe that permanent separation is inevitable, The lawyer's primary focus, therefore, usually, is with a view toward providing realistic assistance under the circumstances.
9I.e., where the Agreement is "unconscionably" one-sided; where there has been significant fraud, duress, or "undue influence" involved in the process of getting to "signature on the dotted line"; where one of the spouses is not sufficiently mentally competent to enter into a contract; and except to the extent that custody and/or visitation of, and/or support for, minor children are involved.
10Indeed, Virginia is apparently the only State in the Union where there is a statutory provision to the effect that, with the limited exceptions noted above, by "signing on the dotted line," the parties absolutely tie the hands of the Courts regarding these matters. Even in D.C., though, it will usually take very significant "material changed circumstances" or "unforeseen circumstances" to get the Court to alter, supplement, etc., the parties' Agreement concerning these matters.
The Virginia court gives primary consideration to the best interests of the child in determining custody. The court assures minor children of frequent and continuing contact with both parents, when appropriate, and encourages parents to share in the responsibilities of rearing their children. In determining the best interests of a child, the court considers a variety of factors including the age, physical and mental condition of the child as well as each parent, the needs of the child, the role of each parent and the rapport of each parent, and the "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," family abuse, and "other factors as the court deems necessary and proper to the determination."
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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