Whose fault is the divorce?

In Tik Tok land, Virginia-based family law attorney Brandon Matthews has been setting the world on fire with his irreverent, fun and crazy videos. Modern Divorce podcast host Billie Tarascio, from her Arizona office, HAD to invite Brandon on to talk about his internet fame, and to break down the subject of whose fault is it when a divorce happens?

In Arizona, the law doesn't really make an issue of fault, but in Virginia, it's a different story, with a potentially substantial financial spanking for one party who is deemed "at fault." What does that mean, and how much are we talking about?

Listen in for a fun chat with the so-called "thelawyeroftiktok" on the Modern Divorce Podcast.

Transcript

Billie Tarascio: [00:00:00] Welcome to the Modern Divorce podcast. It's Billie Tarascio, and we are joined today by Virginia lawyer. It's going to be a really interesting episode because Virginia has really different rules and they require a fault in order for you to get divorced. Now you may know this lawyer on Tik TOK. That's how I met him.

Brandon, share with us your takes on candle. 

Brandon Matthews: The lawyer of Tik TOK, which was surprisingly not taken actually when I started about two and a half months ago.[00:01:00] 

Billie Tarascio: Good for you. All right. Well, Brandon, uh, tell people what it is that you do in brief. 

Brandon Matthews: So in Virginia, I'm at, I do a family law. So most of it entails divorce and child custody cases, child custody, and visitation obviously use, whenever you say a child custody case, you mean visitation as well. And I would say it's about 60 to 70% now.

Um, dealing with specifically family law, which also includes adoptions, which I think any domestic attorney would say that's probably the bright side of their practice is when they get to bring a family together. And I am a sucker for that moment because I tear up every time it's so happy. And then I do probably about 10 to 20%, uh, criminal law and then 10% random other things it's probably even less than 10%, but 10% is just a good whole number. So, 

Billie Tarascio: so here on the west coast, well, and most states states across the country have gone to this no fault divorce system. [00:02:00] And what that means is you can get divorce for any reason. Anytime you want to, you know, he got to go through the procedures, but you can get divorced.

Nobody can keep you married, but Virginia is not that way. So tell the listeners what that means. 

Brandon Matthews: So in Virginia, and this is it's weird for me because Virginia and, you know, I'm born and raised in Virginia. I went to college in North Carolina, but came back. So I'm only used to Virginia, never Virginia doesn't have the, uh, I forgot the specific name for it, but the bar exam where you pass it and you can practice in all in all the other states that recognize that Virginia is not one of them.

I would be surprised if they ever went into it, to be honest with you. So, uh, Virginia, Whenever a parties get separated. And in Virginia, I know some states have, you can file for a legal separation. I hear that quite a bit. So Virginia actually considers your date of separation. The date just for one party had the intent not to remain in the marriage.

Right. I know that's [00:03:00] very, it's like, oh, that's a very broad definition. It is. So usually what I like to tell people is it's a date where something major happens, you know, something that can be reflected and, you know, somebody's moving out. Um, you know, even in Virginia, you can actually be separated under the same roof, which has an uphill battle to prove that, but that can be.

Um, so I guess getting back to my main point, you're separated, you know, the day after you can go to the court and file for a contested divorce first, and it has to be a contested divorce. And that's why Virginia of contested versus uncontested uncontested is where, uh, you have to be just separate . So, if you don't have any minor children, then you have separation agreement, then realistically you can be divorced. And about seven months, everybody signs everything they need to. And so, but with regards to the contested divorce, there's three major fault based grounds that you can pile on and they [00:04:00] kind of have little categories within them.

So the first one is adultery. That's pretty self-explanatory. Now it has to be proven by clear and convincing. Which clear and convincing at least the way they pretty in Virginia is almost to the point of beyond a reasonable doubt. Of course, they're not going to say that in the case law. But realistically in courts, that's what I have found.

It has to be pretty evident, not just circumstantial.

Billie Tarascio: Does that mean you have to prove that your spouse had sex with someone else? Or can you show like lots and lots of text messages? that sort of thing. Can you show meetings time spent together? Weekends away will that, will that cut it? 

Brandon Matthews: So half yes, half no . So text message confirming having sex with, you know, another romantic interest in party

would usually get you there by, especially when it's [00:05:00] from the adverse party that you don't have against admit basically reflecting what happened in the text messages. And that happens quite a bit, which is very surprising to me.

Yeah. And that's where he got busted and then you have it and then you're good to go and you send that to them. And they're shocked. Of course their attorney didn't know because the client's been

right. So I guess it, you know, And that's where the line is a little blurred. So it has to be pretty like circumstantial is, you know, not really one party admitting or saying anything. You know, if the, I guess paramour as, I guess the lover were to say something and then the, you know, the cheating party were to basically not deny it, but, you know, send like one of those Winky emojis or smiling emojis or something like that.

That would probably be able to get you there if you can use the other stuff too. So like the away trips, the weekend trips, [00:06:00] that alone, wouldn't get you there, but that in combination with the other things would, 

Billie Tarascio: wow. Okay. And let's say that you can prove that your spouse cheated on you. What do you get out of that besides just the ability to get divorced?

Brandon Matthews: Yeah. So a very, very good question. So any of the fault based grounds in Virginia. Essentially, it's one of the many different factors that the court takes into consideration when dividing up assets called equitable distribution. So people need to know that at least in Virginia, the pendulum or the scales of justice, if you want use the formula terms starts at the 50 50 mark.

Anything brought in purchase from date of marriage to date of separation is presumed joint marital property. It doesn't matter whose name it's in, who purchased it, or who's benefited. It doesn't matter. That's the presumption, of course, there's exceptions. Like if your family member gave you a gift specifically to you, things like that, but you know, start at 50 50, and then the [00:07:00] circumstances, you know, cause it to swing if they were somebody else.

So it's not like, oh my spouse cheated on me. So I'm going to get a hundred percent of everything. It doesn't work like that. So it would usually side to, you know, 60, 40. You know, somewhere in there, 70 30, probably worst case scenario, but that also depends on how long they were married. Like the marriage is also in that same category.

Billie Tarascio: Well, and does it depend on how much money they have? Like what if they have $10 million to somebody get a million dollars because they got cheated on? 

Brandon Matthews: They could, I mean, if they had a million dollars worth of assets and it starts at five and five, you can go to six and four real quick.

Billie Tarascio: Wow. 

And so decision.

Brandon Matthews: Right. , you know, that's another thing that's taken into consideration. Like I had a case where the party who got cheated on. Was, they were married for a long time. She was a hundred percent disabled.[00:08:00] 

She became a hundred percent disabled legally during the separation time period. Yeah, and couldn't go back to work and not to mention, she didn't really work much during the marriage anyway, so, a very unique set of circumstances for sure. It's but it's not a do all say all the only thing that adultery is a do all say off the war. And of course in Virginia there's exceptions for everything is the party who committed the adultery. And it can be proven by clear convincing evidence can not get spousal support or alimony.

So I always use those terms interchangeably because I know Virginia, the statutes refer to it specifically as spousal support, but alimony - same exact thing,

Billie Tarascio: Interesting. 

Brandon Matthews: It would say unless it's a gross injustice, so there is an exception sounds like, well, it's not even kind of a, I'll say all either. 

Billie Tarascio: Okay. So, so, and then you had said that one of the other grounds is cruelty.

Can you define cruelty?. 

Brandon Matthews: Yeah. So cruelty is usually now the biggest one is the physical abuse. So a lot of times. [00:09:00] You have a domestic assault and battery situation. That's usually that a lot of times, sadly, that's kind of the kickoff point for the date of separation would be that specific event. Um, so the physical cruelty can be proven by, you know, criminal case like that.

You know, warrant taken out, somebody found guilty and they never reconciled after. And it'd be like, this was why we separated. This is why we're getting divorced. So you have the physical cruelty. Now, the, you can also have essentially mental cruelty or verbal cruelty, so basically causing mental abuse on the other spouse.

So most of the time that's very hard and difficult to prove. You know, and that's where you hear things like battered women's syndrome coming up into play, and that's not, that's verbal, not physical. So where, and that's always, you know, from doing this job, I've realized that that is a very significant thing that takes place.

And it is very serious. And [00:10:00] sadly, there's a lot of women that I talk to that, you know, will call me explaining circumstance and then. Even have me move forward on something. And then the second we reconcile and like I've had people do that. Same people do that to me two or three times. So, you know, it's a lot of times the mental cruelty can be very tough to prove in court.

Billie Tarascio: Okay. So how would you prove it? Like for instance, I had a, um, a woman I spoke to yesterday who brought in counseling records and in those counseling records, the counselor said that he had been abusive to her and that he was, you know, he had his assignments to go work on X, Y, and Z. And her assignments very clearly written down black and white, where to go like heal from the trauma of abuse.

Like that's what this council record said. Would that be. 

Brandon Matthews: That would be enough. So you can use expert testimony or experts saying that we've interviewed both parties, especially if it's like a counselor, a marriage counselor. They know [00:11:00] they've interviewed both parties so they can testify to their dynamic and in Virginia, so experts can use hearsay evidence.

So basically they can use statements made by your own client. You know, make an act to say to the core, what their expert opinion is in regards to this person has suffered significant mental abuse. So that. That would get you there for sure. That's 

for sure. 

Billie Tarascio: The first really interesting thing about this is it changes the, the nature of the divorce completely.

So if you have somebody who's looking for vindication, vindication can be achieved in your state and in your courts and in Arizona and many other states. It's just not what the court is there to do. They're there to dismantle a business relationship and you stayed. So you stayed and there is no vindication.

So I would imagine that that might lead to longer trials and more expensive [00:12:00] divorces? Maybe. How long do your divorces take? 

Brandon Matthews: So typically, you know, I've had, I've had both rounds, you know, the, I would say the ones that are dealing with just being separated. And that also, you know, there's certain other things that take into that need to be taken into account too.

Like the length of marriage longer marriages typically take longer because you know, you go through the discovery process and get all the financial statements. Usually it's the last five years, that's kind of the go-to if they've been married, you know, I wouldn't say over 12 years or so, so day going through all those, you know, it was very, very time consuming.

So, you know, if I would say. By the time you schedule it, if they've been married for a long period of time, it could probably take up to realistically two years to do right. And then other ones, shorter term marriages, even if you have pretty crazy circumstances would probably be right around a year.

Based on one year separation. [00:13:00] So that's why when I'm practicing, in my case, I always schedule a divorce trial. I make sure it's after that one year mark, because judges, even if you have pretty significant evidence, They don't usually make rulings on the fault as far as granting a divorce based on fault, unless one party just stipulates to which, you know, the parties in these circumstances don't get along very well typically.

So they usually will fall back to one year separation. 

Billie Tarascio: Okay. So the judge will grant the divorce based on the fact that you all have been separated for one year. I'm not going to make findings on fault. However, when they go to divide the property, it sounds like the property division will include some discussion of the fault 

issues. 

Brandon Matthews: Exactly right. That and any type of spousal support slash alimony.

So for instance, I had a case that we agreed on everything except for spousal [00:14:00] support and alimony. So we literally went into court and we still had to have like a four or five hour hearing on spousal support because it includes almost all those same factors for property, you know, reasons for the dissolution of the marriage.

Income of both parties, any tax consequences of both parties, that's above parties, if there's any children. So it's very, almost the same exact factors. So even though you agreed on everything else, you still have to have the parties testify to those things, because it's all taken into consideration.

Billie Tarascio: It's interesting that whether or not you have children is taken into consideration with alimony, because that's what child support's for. 

Brandon Matthews: Correct. 

And I always tell people too, at least in Virginia, that child support is its own animal. You need to kind of separate that out. Virginia has child support guidelines.

And that's the presumed amount that the non-custodial parent or, I mean, even if it's 50 50, there can still be child support. [00:15:00] They pay the other, pay the other party. So, and that's pretty much completely. Those are, that's a, that's a numbers, a numbers game. It's gross income than any daycare, employment related daycare expenses, any health insurance payments.

And, you know, if there is spousal support, it is computed into those guidelines. But I always say, you know, child support is what it is. That's always what I tell people. And it's, I've only, I mean, I've probably done. I don't know. 450-500 at least cases dealing with child support, whether it was child support only, or, you know, a custody visitation case that obviously child support or divorce.

And I've only had the court differ from those guidelines one time. 

Billie Tarascio: Wow. Interesting. Yeah. 

And that was about four months ago. So it wasn't even like, [00:16:00] and I've been practicing for six years. And started doing child support and family law, I would say pretty consistently about a year. And so five years worth, only one time.

What is it that drew you to family law? 

Brandon Matthews: Um, to be honest. So when I was in law school, my actual, my, the head partner here and I say boss, but our firm is very much like a close knit. Environment. Everybody gets along very well. All the staff, all the employees, all the lawyers, which is we have six lawyers and, and anybody that works with other lawyers can tell you that it's usually you have egos just bashing against each other.

We've been very lucky. We don't have that here. So I was taking a law school class my second year and it was, I think it was called law practice and technology, but realistically it was how to manage a small private practice firm. And. After the class, he reached out to me and my best friend in the law school at the [00:17:00] time, seeing if we knew anybody that needed a job.

Well, at that point, we didn't, everybody that we knew that was graduating already had a job locked up. But we said, because we didn't have class on Fridays, we could help out. And you know, so that basically ended up turning into an internship. And then from there offer, offered me a job. Once I got my bar results.

So, and this form does general practice. I mean, it's family law, criminal law. And then I said, like my bread, 10% random other things, I don't do any like civil litigations of your, you know, suing a roofer over your house cause they didn't do a good job. I had stopped taking those. I see. Doing those cases to focus primarily realistically on, on family law. So, and to be honest with you, when I was in law school, family law was not the area I was planning on going into it all. I was planning on going into business, but the thing is with large businesses, they're usually ran by [00:18:00] older, more successful people, especially when I came out because the baby boomers who have started to retire were still running these businesses.

They don't want a 25-year-old representing them. That's just the reality of it. So, you know, family, and I've started to realize that I can actually help people as far as a family law, when you're dealing with clients, they're going through realistically the hardest time of their life and being able to not just advise them on the law, but be somebody that they can talk to and help them through because before I got married my relationship before that it was, it ended poorly, it went, went through a lot of circumstances that these people go through. So for instance, like my ex-girlfriend, we were living together, she, um, took my shower head. Yes. And I've actually part is I've talked with my, some of my [00:19:00] clients, I think one or two clients that have.

That same thing has happened to them. Yes. And I was like 

Billie Tarascio: This is the first time I've heard of someone stealing a shower head!

Brandon Matthews: And not to mention that my parents purchased for us. So it was even hers. Neither here nor there, I guess. But so I've been through that and I always make sure I tell people I'm not comparing it cause I'm not.

Cause a lot of times these people have children. I don't have, I don't have kids. I've been married a couple years, well a year and a half, but you know, having children, obviously that's not something I can relate to on a personal level, on a court level for sure. But you know, being able to kind of give them words of encouragement, I try to help that.

Cause I know it is extremely stressful. 

Billie Tarascio: Yeah. Uh, I want to know how your firm feels about your Tik Toks. 

Brandon Matthews: Very good question. So, um, definitely the, so the first one I started actually new year's Eve and it might've [00:20:00] been posted on new year's day. So I think I had technically a couple of way before that during the pandemic that I was making fun of roommate or my, my wife's friend was rooming with us or staying at her house cause she was going through a tough time and she would always be filming things. So I took a couple of just basically saying, like filming her, taking pictures of food, nothing at all, compared to what I do. So those are on private and I can see those.

So for Christmas, I got a bunch of my sister-in-law and my wife they've been trying to get me to do it for ever, I would say the last year. And so they got me a bunch of gifts, but like a ring lights, microphone, and, you know, guilty, conscious. I got into it on new years. So, and the first video I had was actually me doing this Celine Dion trends.

One of my wife's like reception dresses from our wedding. It was, it was absurd. And that, of course, actually, somehow I get a screenshot [00:21:00] from the head partner here, a video of him and we have, uh, a firm group chat and he'll of course be making fun of me. Like, what is this? But over time, especially when I had one video go viral, he's been like the last, the last lawyers meeting we had, he, he even said, Brandon, I wouldn't tell you to get off of there, but it's working so.

Billie Tarascio: That makes sense. 

What are you doing? You're demeaning with profession because Brandon's Tik Toks or are, uh, they're silly, they're really, really silly. They're gimmicky. They're cocky. They're just for fun. He's not doing a lot of, you know, educating or pontificating. 

He's just being silly.

It's not a hearing, so I can see why. The law partners might be, uh, you know, irritated with that and, you know, say you're demeaning the profession or whatnot. However, nothing speaks like clients. And if [00:22:00] clients are coming in, then, um, I guess your work does speak for itself. 

Brandon Matthews: Right? Yeah. And the cool part is I'll see a lot of my previous clients and even current clients commenting on it.

And I, and I make sure there's a line I won't cross and posting things. I kind of treated the same way as I tell my clients, when they're going through a custody case and I'm like, look, you got to work things, you know, that you have to, a judge is going to read these things and you got to make sure that there's nothing I would say embarrassing by any means, but I want to try and be different and help people relax through this tough time. And you know, a lot of times, I'm sure you probably know a lot of times the lawyers can't, they have difficulty being real people. And I think it helps, you know, people going through tough times to see that, Hey, there's somebody, that's a real person that can also fight for you in the courtroom as well.

Billie Tarascio: Well, Brandon, thank you so much for your time today and for for being on the show. Um, if you've enjoyed this podcast, make sure to like subscribe and [00:23:00] review this and we will talk again soon. Thanks.