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Ask A.D. Barnett Your Own Question

A.D. Barnett
A.D. Barnett, Lawyer
Category: Family Law
Satisfied Customers: 414
Experience:  Attorney since 1994, experienced Divorce Attorney, Child's Attorney, Adoption, Guardian ad Litem
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My lawyer made me settle foe a No Fault Divorce even tho

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My lawyer made me settle foe a "No Fault Divorce" even tho my wife comitted adultery. She "remarried" while still married to me. I am payiny her aprox. $700 in alimony. Do I have an appealable case?
Submitted: 5 years ago.
Category: Family Law
Expert:  A.D. Barnett replied 5 years ago.
Good afternoon! In what State was the divorce from? What the date of the divorce, and when did your wife remarry?
Customer: replied 5 years ago.
I had a Virginia divorce.Date of my divorce was was either 1993 or 94. My wife remarried about 2or 3 months before the divorce. I think they tried to scam an insurance company in a car wreck was the reason for the quick marriage.
Expert:  A.D. Barnett replied 5 years ago.
Wow. She sounds like quite a piece of work. I guess she isn't concerned that bigamy carries up to two years in Virginia?

You are correct that you would have been in a better situation had you been able to get the divorce on the grounds of adultery, but it could be that the evidence didn't rise to the "clear and convincing" standard in Virginia.

While the appeal time on your case has long run, you certainly may have grounds to modify the Decree. Consider the Virginia Statutes on Modification of Alimony, particularly the last paragraph:

"§ 20-109. Changing maintenance and support for a spouse; effect of stipulations as to maintenance and support for a spouse; cessation upon cohabitation, remarriage or death.

A. Upon petition of either party the court may increase, decrease, or terminate the amount or duration of any spousal support and maintenance that may thereafter accrue, whether previously or hereafter awarded, as the circumstances may make proper. Upon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable. The provisions of this subsection shall apply to all orders and decrees for spousal support, regardless of the date of the suit for initial setting of support, the date of entry of any such order or decree, or the date of any petition for modification of support.

B. The court may consider a modification of an award of spousal support for a defined duration upon petition of either party filed within the time covered by the duration of the award. Upon consideration of the factors set forth in subsection E of § 20-107.1, the court may increase, decrease or terminate the amount or duration of the award upon finding that (i) there has been a material change in the circumstances of the parties, not reasonably in the contemplation of the parties when the award was made or (ii) an event which the court anticipated would occur during the duration of the award and which was significant in the making of the award, does not in fact occur through no fault of the party seeking the modification. The provisions of this subsection shall apply only to suits for initial spousal support orders filed on or after July 1, 1998, and suits for modification of spousal support orders arising from suits for initial support orders filed on or after July 1, 1998.

C. In suits for divorce, annulment and separate maintenance, and in proceedings arising under subdivision A 3 or subsection L of § 16.1-241, if a stipulation or contract signed by the party to whom such relief might otherwise be awarded is filed before entry of a final decree, no decree or order directing the payment of support and maintenance for the spouse, suit money, or counsel fee or establishing or imposing any other condition or consideration, monetary or nonmonetary, shall be entered except in accordance with that stipulation or contract. If such a stipulation or contract is filed after entry of a final decree and if any party so moves, the court shall modify its decree to conform to such stipulation or contract.

D. Unless otherwise provided by stipulation or contract, spousal support and maintenance shall terminate upon the death of either party or remarriage of the spouse receiving support. The spouse entitled to support shall have an affirmative duty to notify the payor spouse immediately of remarriage at the last known address of the payor spouse. "

In Virginia, even so-called "permanent" awards of alimony are subject to modification. As you can see in Paragraph D, the remarriage should have terminated the spousal support unless your Decree stated otherwise. This may sound strange, but although Bigamy would render the marriage void, that would actually harm your ability to argue that spousal support ended when she remarried. If she is not currently legally married, then you have to rely on one of the other provisions listed above to terminate or modify the support.

You should definitely have a local attorney review your decree and help you pursue a Motion to Modify the Decree of Divorce. Even if the marriage is invalid, you probably still have grounds.

Best of luck! I sincerely XXXXX XXXXX go well! I also hope this information was helpful!

A.D. Barnett, Lawyer
Category: Family Law
Satisfied Customers: 414
Experience: Attorney since 1994, experienced Divorce Attorney, Child's Attorney, Adoption, Guardian ad Litem
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