Virginia Divorces: Why You Should Hire a Divorce Attorney . . . An Illustration

What’s the worst that can happen to you if you represent yourself in your divorce case in Virginia?  Well, let me tell you a cautionary tale . . .

In Wroblewski v. Russell, Record No. 1308-13-4, 1308-13-4 (Va. Ct. App. 2014), the wife filed  a complaint for divorce requesting that she be divorced from her spouse on the grounds that they have lived separate and apart for over one year.  Within the wife’s complaint, she asked the court to award her various things, including an award of spousal support.  Her husband, in response, filed an answer to her complaint and his own counterclaim for divorce.  The wife, in return, filed an answer to his counterclaim for divorce, though she notably did not request spousal support in her answer.  Instead, her sole request for spousal support was in her complaint for divorce.

While the case was pending, the wife received a temporary award of spousal support in the amount of $20,625 per month.[1]  At the divorce trial, where she represented herself, she failed to provide corroborating evidence of her one year separation.  Accordingly, when she finished her case in chief, the husband moved to strike the wife’s evidence/pleading on the ground that she failed to prove that she was entitled to a divorce due to the lack of necessary corroboration under Va. Code § 20-99.  The trial court agreed regarding striking her pleading, but awarded the wife spousal support for three more years anyway.

The husband appealed arguing, amongst other things, that the wife should not receive spousal support because the only pleading requesting such relief had been stricken.  The Virginia Court of Appeals agreed.  It held that “[a] claim that is grounded upon a stricken pleading does not linger on in spectral form before the court – it is interred and removed from consideration.”  It further held that it could not award spousal support in the absence of a pleading requesting the same despite the trial court’s power in divorce cases to “make such further decree as it shall deem expedient concerning the maintenance and support of the spouses” under Va. Code § 20-107.1(A).  The existence of an existing pleading requesting spousal support was essential.

So what went wrong for wife?  First, the wife should have put on evidence corroborating her grounds for divorce to survive the husband’s motion to strike.  Competent counsel would have known to do so.  Second, the wife should have requested substantive relief in her answer, including a request for spousal support.  Competent counsel would have known to do so.  Third, the wife should have moved to amend her answer, even after the court’s decision to strike her pleading, to include a request for spousal support.  And, fourth, and perhaps most importantly, she should have just hired competent legal counsel in the first place to prevent her from making these errors on her own.  So what, at its core, went wrong for wife?  She assumed that she would be fine representing herself.

[1] I really don’t understand how anyone needs the equivalent of $247,500 per year to make ends meet, but apparently the trial court found someone who did.  Good for them, I guess?