Learn the difference between legal custody and physical custody, as well as various types of visitation schedules.
Learn the difference in calculating spousal support vs. child support.
Learn how real property and personal property are divided in divorce.
Learn options to grow your family.
Whether preparing to tie the knot or transitioning back to single life, learn how a cohabitation, prenuptial or post-marital agreement can work for you.
Learn about the process of dissolving the legal bonds of marriage, including separation, divorce and annulment.
A court is always going to consider what is best for a child. So should you. Here's what you should know to make the best decisions for your family.
In Virginia, there are two categories of custody:
Legal custody concerns who makes decisions for and on behalf of a minor child, including the child’s education, medical care, upbringing, and relationships with parents and third parties. Parents may share joint legal custody and cooperate to make decisions for a child. A parent having sole legal custody is the only one with a right to make decisions for and on behalf of a child.
Physical custody concerns when and how a child spends time with each parent. This is also referred to as “parenting time." A parent can have primary, shared or split physical custody.
Child visitation is related to, but different from child custody. In Virginia, visitation can also now be referred to as “parenting time.”
Visitation or “parenting time” is the actual time you spend with your children when you do not have primary physical custody. It can include time on the telephone, via Skype or FaceTime, mid-week dinner visits, weekends, holidays and vacation time.
There is no one-size-fits-all schedule when it comes to time with your children. The schedule that works for your friend or co-worker may not work for your family. Your visitation schedule should consider the circumstances of your family dynamic.
In Virginia, child custody and visitation are always modifiable based on a “material change” in circumstances. Material changes can include change in a child's age, maturity and/or educational needs, parent relocation, or changes in family relationships.
To learn more about what child custody and visitation arrangements may work best for you, please contact us.
Spousal support is awarded to provide financial support for a spouse during, and sometimes beyond, a pending divorce. In Virginia, spousal support can be temporary (also called “pendente lite”), rehabilitative or permanent.
A common myth is that spousal support is awarded for a period of time equal to ½ the length of the marriage. However, the duration of a marriage is just one of 13 factors a Virginia court considers in determining the nature, amount and duration of spousal support. Some of the other factors include:
If a court finds one spouse is at fault for the end of the marriage, that spouse could be barred from receiving spousal support.
Depending on the circumstances, the amount or duration of spousal support can be modified, or even terminated altogether.
Child support is monetary support each parent provides for the benefit of a minor child. It is a familiar but often misunderstod concept.
In Virginia, child support is calculated according to statutory guidelines. It is based upon the combined income of both parties, and takes into consideration the number of children being supported, the physical custody schedule, health insurance coverage and child care costs, among other things.
Child support can be used to pay rent, car notes and insurance, groceries, utilities, school supplies-- anything needed to support a child. Virginia law also protects the right of support for adult children with permanent disabilities.
In Virginia, child support is modifiable based on a “material change" in circumstances. Material changes may include increase/decrease in income or changes in medical or childcare costs.
To learn more about your spousal support or child support options, please contact us.
Dividing assets is often an important part of the divorce process. Assets include real property (family residence, rental properties, vacation homes, etc.), personal property (vehicles, bank accounts, furniture, heirlooms), retirement and investments accounts, business and intellectual property interests. It also includes debt. Both assets and debt must be divided upon divorce.
Many people are familiar with the community property approach to asset division. Under this approach, generally all property acquired during a marriage is deemed owned by both parties and divided equally upon divorce or annulment. Virginia is an equitable distribution state. This means that property is divided based on fairness under the circumstances, and not necessarily an even, 50/50 split. A court will consider 10 factors in determining how to divide assets, among them including:
No factor carries more weight than another. However, you want to speak with an attorney about which factors should be emphasized under the circumstances of your family.
Just as with assets, division and assignment of debt is also determined as part of a divorce. In making the determination, a court will consider (1) the nature of the individual and joint debts and liabilities, (2) the basis for the debts and liabilities, and (3) whether and what property was used as security for the debts and liabilities.
Debt incurred before a marriage and/or after separation is considered separate debt. It will likely remain your responsibility beyond divorce. Debts accumulated during the marriage, however, are considered marital debt, regardless of whether the debt is held in a party’s sole name or jointly in both parties’ names.
A person contemplating separation and divorce should conduct an inventory of debt. Look for mortgage statements, car and personal loan documents, and credit card statements. Obtain a recent copy of your credit report. When you know the full extent of your and your spouse’s debts and liabilities, you are in a better position to negotiate your rights and obligations.
When it comes to personal property, cars and bank accounts come readily to mind. But it is not unusual that disputes over asset division can sometimes come down to items initially overlooked: family heirlooms, picture albums, valued artwork, book collections, wedding china. It is important to take an inventory of your household items and personal effects and to determine the items you want to keep versus those you are willing to share. By creating an inventory, your attorney may be able to negotiate for them during settlement discussions. You may also be more prepared should your case go to trial.
Business interests are another type of asset that can be divided as part of a separation or divorce. The value of a business interest can be determined by a business valuation expert. The rights of the non-owner spouse will be assessed based on the spouse’s direct involvement in the business, or to what extent the family may have relied on business income or family resources were invested in the business. Prenuptial and postnuptial agreements may be one way to protect business interests in the event of a divorce
Please contact us to discuss how best to preserve or divide your assets.
Adoption is a tremendous option for those looking to grow their families. In Virginia, adoption can occur through an agency or with an adoption attorney. Close-relative adoptions are possible for step-parents, grandparents, and certain other relatives.
To adopt in Virginia, a prospective parent must be at least 18 years old. There is no marital status requirement-- you can be single or married. With few exceptions, you will have to undergo a home study as part of the adoption process.
If you would like to know more about your options when it comes to adoption, please contact us.
Domestic agreements are contracts between people in or anticipating domestic living arrangements. The most common domestic living arrangement is marriage, but can also include cohabitation or separation. The purpose of any domestic agreement is to establish property rights and protections in the event of a conflict between the parties.
Premarital agreements (also known as prenuptial agreements, or “prenups”) are contracts entered in anticipation of marriage. A prenuptial agreement can cover many issues, including disposition of property, spousal support rights, wills and trusts, and even choice of applicable law. In Virginia, a prenuptial agreement goes into effect once the parties are married. Prenups are particularly encouraged for people entering a second or subsequent marriage, or those who are marrying for the first time later in life and/or with significant assets.
Even after parties marry, they can still enter into agreements to address rights and/or circumstances of a marriage. Sometimes couple enter into such agreements to address issues that weren’t anticipated prior to the marriage. At other times, couples may seek a marital agreement because of difficulties in a marriage or in anticipation of divorce. These include:
Cohabitation agreements are agreements entered in by unmarried couples who live together. Such agreements protect the parties’ rights as a couple and can confer certain rights between them usually only conferred with marriage. Cohabitation agreements also protect each party’s individual rights within the relationship, including property rights, shared finances, medical and estate rights.
To explore your options for a domestic agreement that works for you, please contact us.
Sometimes a relationship is just not working. There may be many reasons a couple finds it necessary to separate. Separations can be temporary, or initiated with the intent to set the stage for divorce.
After 1 year of separation, a party may file for divorce. If the parties have signed a property settlement agreement and have no minor children, the separation need only be 6 months. Although separations usually involve parties physically residing in separate residences, it is possible to be separated while living in the same home.
To establish grounds for divorce, a separation must be intentional—specifically, a party must intend to be permanently separated. How to prove this intent depends on the circumstances of your situation. While it is possible to live separately in the same home, a separation cannot be effected in secret. Both parties must be aware that they are living separately with the intent to divorce.
Divorce is the process of dissolving the bonds of matrimony. As part of a divorce, your assets and debt accumulated during the marriage are divided—not necessarily in an equal share. The process can also resolve issues of child custody and visitation, spousal support and child support.
To file for divorce in Virginia, the party initiating the divorce must file based on either fault or “no fault” grounds. Fault grounds include adultery, desertion/abandonment, and cruelty and constructive desertion. You can also file for divorce based on “no-fault” grounds once you and your spouse have been separated for 1 year (or 6 months, if you have no children and a signed property settlement agreement).
An annulment has the same legal effect as a divorce—the dissolution of a marriage. However, unlike a divorce of decree of annulment declares the marriage never legally existed. In granting an annulment, ta court finds the marriage either invalid, or that it can be invalidated, as a matter of law. In Virginia, a party must have a lawful basis for annulment, and the action must be brought within 2 years of the date of the marriage. Even though an annulment deems the marriage invalid, any children born of an annulled marriage remain legitimate. A court can still make decisions regarding child support, custody and visitation.
The terms of divorce do not have to be decided in court. Settlement negotiations, mediation, arbitration, and property settlement agreements are just some of the alternative methods that can be used to finally resolve your family issues.
Terminating a marriage is not easy, whether the decision is your or the result of your spouse’s actions. But you should never go through the process without first speaking with an attorney about your rights and obligations. For more information about how to choose the right attorney and process for you, listen here.