David McCormick, a Virginia Family Lawyer, on Divorce in Virginia
October 06, 2014
Understanding the process of divorce and the long-term impact of decisions made during your case is vital for making informed choices that are right for your future and your family. There are multiple factors to consider in both contested and uncontested cases, especially those involving child custody, child support, and spousal support issues. However, another important aspect of thriving through your divorce is choosing a family law attorney with whom you can work well and agree on a fair payment system.
Hosted by: Dan Couvrette, CEO, Divorce Magazine
Guest speakers: Family Lawyer – David McCormick. The founder of David McCormick Law Group, Mr. McCormick is an experienced attorney licensed to practice in Virginia and New York. Throughout his 19 years of legal practice, Mr. McCormick has served thousands of clients with cases involving courtroom litigation as well as out-of-court negotiations. His business background and extensive experience working with clients in cases of bankruptcy, debt, and adoption complements his family law practice and strengthens his ability to serve divorcing families from all walks of life. Learn more at www.dmmlegal.com.
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Read the Transcript of this Podcast Below.
Maybe you can tell us, first of all, where your offices are located in Virginia.
McCormick: Great. We have seven offices in six cities in the greater South Hampton Roads area. We have basically offices in the peninsula, too, and those two offices are Newport News and Hampton and on the South side we have two office locations in Virginia Beach, one in Chesapeake and one in Portsmouth.
Sounds like you’ve got the area covered for sure.
McCormick: We do and we’re growing. It’s at the request of many our clients to have these offices and it sure helps facilitate them coming in.
Great. So, let’s start at the beginning regarding divorce in Virginia. Can you tell me what the grounds for divorce are in Virginia?
McCormick: Yes, there’s a separation grounds and there are two types. The first is a six-month separation where the parties have agreed to everything and there’s a written agreement and there are no minor children. That’s a separation ground of six months, and there’s also one of twelve months. Twelve months is if you have everything settled, everything is in a written property settlement agreement and there are minor children. You have to be living separate and apart for 12 months.
Other causes of action include what we call fault grounds basis of divorce here in the commonwealth of Virginia. That would include adultery, desertion, and abandonment and also emotional and physical abuse.
What does a person do in Virginia to start the divorce process or a divorce action?
McCormick: Well, if there’s a fault ground basis where they’ve met the required separation time of six or twelve months, a lawsuit is initiated and that’s called a bill of complaint and it’s filed within a court system in a city where they reside.
However, many people begin the divorce process prior to bring ready for the filing of a suit and try and come up into a full agreement through the use of attorneys and putting together a marital settlement agreement. Third, some people need to go court initially to get support and determination of custody. Even before filing a divorce you can do that in our family court system. In the commonwealth of Virginia, that’s JD&R, Juvenile Domestics and Relations Court.
Do you have advice for anybody thinking of getting a divorce? What they can do to plan ahead I guess?
McCormick: Well, planning is an important key. There are so many different issues, from financial security to just the very basics of where will someone stay when they’re separated from their spouse. What happens when two incomes becomes one? The questions of financial security and of the impact and affect on children all need to be sorted out on a personal and legal level. Typically, common to anyone coming into our office, we sort out every issue that they may face currently and down the road so we can give the best advice to the client.
Let’s say somebody starts a divorce process and they decide halfway through that they don’t want to go through with it. What’s the process then? What do they need to do?
McCormick: We do have one or two cases, that would be an average, where there’s reconciliation. That can be a very good thing.
However, typically, once a lawsuit has been filed in the city of their jurisdiction or residence, the only way to stop that divorce and the proper legal mechanism is called a non-suit. A non-suit means I’m cancelling the divorce action. I may be doing so voluntarily, maybe I’m not ready for it or we’ve reconciled, but the non-suit is how to stop the divorce legal action.
David, you have years of experience working with divorcing people. Do most cases settle out of court?
McCormick: I would say that statistically, and we’ve done thousands of cases, somewhere between 80 or 85 percent do settle out of court. They may not do so initially at the beginning of a separation, but somewhere along the process of time, it may be through an office settlement conference or through negotiation through attorneys. There are many mechanisms in place that work very hard and diligently to try and get out of court settlements.
What happens if a person ends up going to court? I guess, either those assets that need to be divided and they can’t agree on it, or there’s child custody issues. What is the process then?
McCormick: Well, that’s full litigated and that’s what we would call a contested custody or contested divorce. All the remedies within a courtroom are used. Typically it’s much more expensive. It’s very time consuming and can add six months onto the divorce process.
There are about three phases when you do have contested divorce or custody. Number one is the exchange of all the documents and relevant information through a legal process called discovery. That can be cumbersome and takes several months.
Second is all of the pre-trial conferences and the attempts to still settle the divorce issues prior to the court case. Finally, if there is no resolution and justice isn’t being served, then it’s time to step in and you do battle in the courtroom. The case can go from half a day to three days. That’s very, very typical. The person who will make all the final decisions at that time will be the judge.
How long would you say, and you can talk about contested or uncontested divorces, should a person in Virginia expect that their divorce is going to take to be finalized?
McCormick: A great question. If it’s uncontested and everything is in place, from the filing of the divorce suit to the final entry of the decree that the judge signs off, you can expect about three months. Sometimes it’s on the short side of two months. So that would be an average time, once the divorce suit is filed if it’s uncontested.
Now, if it’s contested, I generally have a rule: I tell a client to expect, embrace, and be prepared for an additional six to nine months of processing time in order to work through all the court requirements and get to the trial litigation phase.
How is child custody determined in a Virginia divorce?
McCormick: The governing rule goes to the very major issue of what is in the best interest of the children. So, all these cases about custody is putting on evidence, putting on witnesses to determine that your client, or that specific parent, would be the best parent and the child’s best interests are served by being with that parent.
So, first of all, the court will make about three decisions. They will make decisions on joint legal custody, meaning both parents have a right to be involved with school, medical decisions, those types of things. That will not be denied or is rarely denied. However, they’ll decide who will the children be staying with for the majority of time. We call that primary physical custody. That may be that 70-80 percent of the time they are with one parent and then they’ll decide what is the best visitation plan and specifics of visitation that are in the best interests of the children so it’s not a major problem back and forth for years and years.
How are child support payments determined in Virginia?
McCormick: In Virginia the formula is determined by our legislature, which takes it out from the guesswork and the litigation work. By statute, they have child support guidelines and it’s kind of a formula based on the parents’ responsibilities.
Number one, we look at the gross income of both mom and dad and who makes the percentage of the total, one spouse makes 60 percent of the total income and one makes 40 percent. Then that’s pretty much their support obligations concerning the gross incomes amount of the parties. The party that pays medical insurance for the children will get a credit for that and the spouse or the parent that would pay for the on job day care costs (meaning day care costs accrue because of work-related reasons) get a credit for that. So, ninety-nine out of a hundred attorneys will come up with the same guideline amounts for child support. The one out of a hundred that doesn’t hasn’t done his homework.
Well, I know that you would have done your homework. You’ve done this many times so our readers can rest assured that if they talk with you, they’ll be talking with somebody who knows what they’re doing.
McCormick: Right. At the very beginning of the case, we put all the guidelines in writing and walk the client through it so they have a really good understanding and they also see how we came up with our numbers. That’s tremendously helpful to the client.
For how long are support payments made? Is there a defined period of time?
McCormick: Yes. Typically, they’re made through the entire high school years for the schooling age of the children. There are some students that become 18 during their senior year, so typically graduation of high school or if they were to drop out of school at an earlier age, hopefully there won’t be too many of those cases, then it’s until the age of 18.
Let’s talk for a moment about the division of property, which could be homes and cars and any other assets that the couple might have. How is property divided in Virginia?
McCormick: In Virginia, the whole process of property division, including debt analysis, determining support, and retirement amounts, is called equitable distribution by the courts. Equitable distribution basically says that based on the individual case, all its merits, facts, and evidence, this is the right way to divide up the marital estate. The court is very interested in finding out the contribution of both parties. They’re very interested in the incomes of both parties as budgeting needs going forward. Another key component would be the length and time of the marriage. The fourth major component would be looking at what caused the breakdown of the marriage. Who caused these problems? Is it the fault ground basis of divorce? So, all that comes into play as evidence to determine how do we divide it up.
In a case that is ten years or less of marriage, many times bank accounts are evenly split for the most part and whatever earned retirements are reciprocated for each spouse. The debt allocation can often be done by percentage of totalling concern by each party. That’s not always the case, but those are some guidelines that potential clients can consider, concerning what the courts can do in their case.
You mentioned fault ground for divorce. Does fault come into play at all when assets are being divided or is it irrelevant?
McCormick: It becomes very relevant in cases where there’s abandonment or desertion. That means one spouse leaves the entire household, sometimes with notice, sometimes not. So, there would be a huge penalty and that would be a huge factor in the court awarding a greater share and greater percentage of assets to what I would call the innocent spouse or the one that has been abandoned.
It’s the same with adultery. If you’re in a marriage, you’re supposed to be supporting your spouse and your family; but if you enter into an adulterous relationship, you might stay and start supporting the other party. The court will frown upon that and there’s a high financial penalty to pay for that. It is a huge consideration.
Military can affect the divorcing process. Is there anything in particular people should be aware of if they are in the military or they have a spouse in the military regarding getting a divorce?
McCormick: There is and in our area, by the way, forty percent of adults are either serving in the military, supporting the military in a federal state function, or retired military. So, we have helped and assisted thousands of military clients. Generally, the same rules on equal distribution, retirement, and spousal support will apply. In the military, there are some exceptions and that’s where our expertise comes into play.
Typically what can affect a divorce process, whether it’s an initial separation, temporary spousal support, child support, or the divorce litigation itself, is when a military service member is actually deployed. So, many times that can delay the process until they are in the court. It affects the processing of paperwork where they have to be served on a military member there are certain federal guidelines there.
What is spousal support and how does that work in Virginia?
McCormick: In some states it’s called alimony and in the commonwealth of Virginia it’s called spousal support. If I can give you an example, it will really register. Let’s say the husband is making $6,000 a month and the wife is making $1,000 a month and a lot of her time is spent with three children at home—that’s a hugely valuable contribution and a tremendous role. Well, there’s obviously it’s a huge difference of incomes.
Likewise, the parent not working full-time or staying at home or without the higher income potential is supporting the spouse so they advance their careers and advance their education. The court will remedy that and will award temporary or permanent orders for the higher earning spouse to pay a monthly contribution or support amount of spousal support each month. That will be income to the spouse that receives it.
Each case is different, but in my case of the $6,000 income versus $1,000, maybe the court would award that client $1,500 a month to make up the differential.
Spousal support becomes more permanent the longer the marriage is, too. Many of our cases where marriages are 20 years and above, that monthly spousal support obligation will be until the other party remarries or dies. There are no specific guidelines for spousal support; it’s case by case. We litigate a lot in that department or we negotiate good settlements on behalf of our clients for their need of spousal support.
This would be an area of where experience really makes a difference. Would you agree with that?
McCormick: Absolutely, and being well versed in ten different court rooms that we’re in all the time it makes a big difference in knowing how the courts will look at and review the spousal support.
We do some extensive work and we put guidelines and written formulas together also to help the client at the very beginning of their case. Well, what can I expect? I don’t have the money and I need monthly support. What do you think a court would award me? What do you think you can negotiate on my behalf?
We have some financial teams that work both departments, bankruptcy, which is a lot of financial issues, and divorce. We come up with formulas that are very helpful in giving guidance to the clients at the very beginning of the case.
Talking about experience, because you’ve done this for 20 years, is it also important to know the other attorney on the other side of the case and how they operate and how they think? Is that critical information to have?
McCormick: Well, there are a lot of divorce attorneys, but there’s not as many as you would think that are not full divorce service attorneys. There are many attorneys that will get in a case, negotiate, try to come to best terms, but then they’re not willing to step in and litigate.
I’m as strong in litigation as I am in negotiating and putting agreements together. We try and get the edge in every single case and understanding who we’re dealing with and the strengths and weakness of each case.
Case preparation is such a vital part of our legal work. I’m an attorney who likes to build a foundation to the case by looking at the best-case scenario and worst-case scenario at the very beginning of the case. That’s where we outshine the other attorneys.
I’m going to go back to spousal support for a moment. What happens if the spouse is not paying the spousal support to the receiving spouse?
McCormick: The impact on the spouse that’s supposed to receive it is devastating. Many times, they don’t have the money to get proper food, clothing, and paying their utilities that they need. It can be so devastating that I get involved in many cases where we are seeking spousal support remedies when they’re not paid. Sometimes more than an attorney letter and a phone call is necessary where action can be filed in the appropriate court to have the judge sanction the other side, to have it payroll deducted. Sometimes when there’s belligerence on the other side, a lack of co-operation, the judge would make a decision whether jail time would be appropriate in that case.
So, whenever something becomes so necessary that aggressive action has to be filed for contempt, that’s called a show cause hearing. I’ve been involved in four or five of those just in the last two weeks. Many times the defaulting party will have to pay my client’s attorney fees, but there is a remedy and a swift remedy at that in those events.
Can somebody dispute legal fees if they feel that they are being charged inappropriately by their lawyer?
McCormick: Well, that’s a great question. I think that when I began the profession at a later age I realized I needed to resolve the fee disputes. There are many of them. The best remedy is to start out with a clarification of what the fees are going to be.
The Virginia State Bar has a voluntary system when a client notifies it. It’s a free service that let clients say, hey, I don’t agree with what I’m being billed. I think I’m overcharged. I don’t think this work has been done. An attorney can voluntarily come into the mediation and they will appropriate what would be a good remedy in that case.
The third option is that a client can sue an attorney for the attorney fees and no attorney wants to defend before a judge that they haven’t done the work and there’s been a problem with the work they’ve had.
So, those are three things to consider so there are no disputes. They’re remedied very quickly through the Virginia State Bar or if they have to be litigated there’s a remedy there, too.
Can you give me a few suggestions as to what somebody can do to help control the cost of their divorce? As you know, sometimes it can get out of hand. Are there things that people can do to help themselves, keep their divorce costs down?
McCormick: Yeah and keep in mind, I look at the entire divorce payment system so differently than the culture and what happens out there. When I’m hired to do something for a divorce client, it’s very clear what that matter is, and I do no hourly billing. So, it’s just kind of like a mechanic when a car comes in the shop, they give you a fee quote. Often they will give you payment terms. We don’t experience that difficulty here because the fees for everything we’re hired to do are laid out for the client and they’re allowed a monthly payment plan as well.
Speaking to most of the attorneys, probably 98 percent do hourly billing, so I would say co-operate with the attorney who has seen everything from a legal mindset and a legal dimension, get your paper work in, and be phenomenally responsive to the documents. When that doesn’t happen, it just increases the cost.
What do you think people should be mindful of when they’re going to hire a divorce attorney? Is there anything they should specifically be looking for?
McCormick: I always recommend, number one, to check with Virginia State Bar to see if there are any bar complaints with that divorce firm or that divorce attorney, to see if there’s a record, or a history of him or her not taking care of the clients. That’s transparent and everyone has access of that.
Number two, I would say check with the Better Business Bureau, who gives ratings to various attorneys and also rates their skills of coming to resolutions, and go with an attorney that has a fantastic rating.
Third, in divorce circles, because there’s so many issues that impact the future the next five to fifteen years that you want to seek an attorney that has a lot of experience in simple cases, complex cases, and in the litigation process too; someone who’s willing to fight. We do a tremendous amount of out-of-court settlements, but we’re prepared in any moment to take it into the courtroom.
The fourth thing to consider is what are the payment terms? This is specific to contested custody and specific contested divorce that sometimes attorney fees can be $15,000, $20,000, $30,000; make sure there’s a strong mechanism in place of a reasonable monthly payment plan. I’m an advocate for flat fee and fixed fees so the client knows what they’re paying for.
The fifth thing is that I think it’s good advice to talk to a couple of attorneys, talk to two attorneys, to see what one attorney offers that the other one doesn’t. Clients should see who they can put their full trust and confidence in and then they can make their decision on who to hire. So, those are five guidelines I can give you.
David, I want you just to talk for another minute or so about flat fees, because I think most people who are going to hire a divorce lawyer are expecting an hourly rate. Can you just distinguish what flat fee means and hourly rate means?
McCormick: Yes, I will. So, typically, what is standard in the legal community and the divorce field, an attorney will ask for a deposit. That deposit can range from $3,000 to $5,000. Then any work they do and any work that the paralegal does, they get a statement on a monthly basis and they will deduct earned attorney fees and paralegal fees from that deposit.
Let’s say skilled attorney fees that have 15 or 30 years of divorce practice may be charging $400 to $450 an hour. So, when they’re on the phone with a client, when they’re doing legal work, when they’re in the trial mode, when they’re in negotiation, all that time is kind of like a meter. It’s running up and it’s billed against the deposit. It’s the same with the paralegal time, but that may be $100 to $150 an hour.
In most cases, you exhaust that $5,000 retainer and you’re putting another retainer in that can be exhausted. So, in a sense you never know the final cost. There’s so much pressure and stress going through a divorce, but the last thing you need is an uncertainly of what the fees are.
When I stepped into divorce practice about 19 years ago, I said I want the certainly of a fixed fee. I have the skills, and I know my timing, my time management, and my efficiency, so I give a set price on every single case a head of time. The client knows what stage we’re in. If it goes to a contested divorce they know the remainder of the fees. So, once I establish what I’m hired to do, if it’s contested custody or case, I just tell them the price. Then I give them the monthly payment options. So, that is such a huge benefit for our clientele. I’m proud I can offer that and we will continue to do so.
Is there anything in particular about your experience, you mentioned about your flat fee which I think is a big difference compared to most attorneys, about your specific experience, either in practice or in your life, that you think makes you well suited to deal with divorce cases?
McCormick: Well, two things. Prior to entering the legal field at age 39, I had a strong business background, a very business analytical mind that dealt with a lot of financial data. I really have incorporated that in my bankruptcy and divorce practice.
I had a career at UNI parcel service. A dual service that we offer is bankruptcy and that deals with a tremendous analysis of financials, real estates, contracts, and fee disputes. So, that same expertise that we provide in the bankruptcy department, we still have the teams that help us with financial data in the divorce field. There is, unfortunately, too many of our clients that have to file bankruptcies with us and divorce. Divorce is probably one of the top three leading reasons of bankruptcy. So, I think the financial and business history I have helps facilitate a lot of strong creative resolutions and solutions not thought of by other attorneys.
Second of all, I love helping people. We give it our all, our very best in each case. That means my pledge of working hard for the client is there. We start out of the gate with a lot of preparation and foundation building.
My years at United Parcel Service and now my 19 years of doing law were phenomenally efficient and quick; where we look at the industry standard on completion times and we reduce that by two thirds. For divorce clients and custody clients, getting closure, getting to resolution, getting to the finish line is very important. We don’t control the entire pace getting there because of the other side, but I can do accurate work; I can come with good resolutions and work very quickly for my client. So, when I say I’ll have the bill complaint ready in ten days, they say, oh, I thought it was two or three months. Or I will have full stipulation agreement done in 15 days. That’s the high level service we offer.
Every divorce case I relate to not only as a private attorney practicing divorce, but I had a 29-year marriage that ended in divorce. I became a single father responsible for two children. So, I know the trials, the stress, and the anxiety when a separation occurs, when a divorce occurs when you’re a single parent and you have to juggle visitation schedules and you have them 80 percent of the time. I think that gives me great compassion and even a stronger resolve to help the client resolve it in a quick, efficient manner.