Virginia Settlement/Appeal

• Is it better to settle?

  The only won case is a settled case. Even if you have all the facts on your side, and the court gives you a good award, there is an appeal of right in divorce cases in Virginia to the Court of Appeals. In every case there is a time to settle, and there is a time when it is too late to settle. You just need to know when to hold and when to fold.

• What are the benefits to settlement?

  The most important benefit to settling a case is that it gives the parties the ability to have more control over the outcome and the ability to tailor the agreement to align with the needs and best interests of the family. In litigation, the court is bound by the law and cannot be as creative with the outcome as the parties can be in reaching a settlement agreement. Additionally, the cost of litigation tends to far exceed the cost of settlement and mediation, so there is usually a cost benefit to settlement. Further, in situations where child custody is involved, reaching a settlement allows for a greater possibility of positive co-parenting moving forward.

• What is the settlement process?

  While the settlement process can depend on the facts and issues in your case, there are several options in exploring settlement negotiations. If you and your spouse are amicable and can mutually agree to the settlement terms on your own, then those agreed upon terms can be incorporated into a formal agreement. However, if you and your spouse are unable to mutually agree to the terms on your own, then it may require the involvement of legal counsel to further settlement negotiations. This may include exchanging settlement offers, scheduling a 4-way settlement conference, when both parties and counsel meet to negotiate the terms, or scheduling a formal mediation, which includes an unbiased third-party mediator (such as a retired judge or neutral attorney) who assists in the settlement process with both parties and counsel.

• What happens if my spouse wants to appeal the result?

  If your spouse appeals your trial “victory”, you will spend another year trying to defend what you were awarded, which will cost further and substantial attorney’s fees. While settlements can also be appealed, it is far less common, and appeals of agreed orders are more likely to fail on procedural grounds.

• What is the appeal process in Virginia?

  Family law cases in Virginia can be filed in Virginia Juvenile and Domestic Relations District Court (“JDR Court”) or in the Virginia Circuit Court (“Circuit Court”). All divorce cases must be filed in the Circuit Court, but custody, visitation, child support, and spousal support cases may be filed in the JDR Court. If in the JDR Court, any final order entered by the court may be appealed by either party within ten (10) days of the entry of the final order. If a party chooses to appeal a final JDR Court order, the case is moved to the Circuit Court and a new trial may be scheduled to re-adjudicate the issues. This is essentially a “do-over” for the appealing party who may not be happy with the JDR Court outcome. However, if in the Circuit Court, any final order entered by the court may be appealed within twenty-one (21) days of the entry of the final order if a party believes the Circuit Court judge made a legal error. This is very different than JDR Court when you can file an appeal for simply disliking the outcome. In Circuit Court, there must significant errors to fact or law that occurred during the trial or there must be a showing that the judge abused their discretion. The merits of the appeal are the assessed and adjudicated by the Court of Appeals of Virginia.