Virginia Divorce Recovery

Child Custody

Virginia child custody operates under the principle of the best interests of the child. All reasonable efforts will be made to assure minor children of frequent and continuing contact with both parents and encourage parents to share in the responsibilities of raising their children. This is the position of the family court if it is left to sort out the parenting time between parents. You will have the opportunity to hash out a Parenting Plan, Visitation Schedule and/or a Child Custody Agreement. If your efforts fail to reach an agreement, the court gives you the state's generic custody plan after exhausting a mediation process. So do your best to put together plans with your spouse. It's much tougher to go back later and correct things, after the ink is dry.

Either parent may be awarded primary custody

At least outwardly, there is no presumption awarding VA child custody to one parent in favor of the other. The court has the ability to award custody in unconventional terms (to the father) upon evidence that the best interest of the child would be served. The court may award joint custody or sole custody.

In determining best interests of a child for purposes of setting custody or visitation, the court may consider the following:

• The age and physical and mental condition of the child,
• The age and physical and mental condition of each parent,
• The relationship existing between each parent and each child,
• The needs of the child, giving due consideration to other important relationships of the child, including siblings, peers and extended family members.
• The role which each parent has played and will play in the future, in the upbringing and care of the child,
• The propensity of each parent to actively support the child's contact and relationship with the other parent. Special care is given to determine if either parent has unreasonably denied the other parent access to or visitation with the child to the other,
• The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child,
• The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference; Any history of family abuse.

 

 

The court will have the authority to order a party to provide health care coverage for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse.

This state is similar to other states in their capability to enforce VA child support obligations. Virginia divorce laws permit the state a wide array of enforcement of tools at its disposal. It has the ability to seize income tax refunds, garnish wages, place liens on property, suspend licenses, seize assets and attach property.

Virginia child support ends at age 18 unless the child is still in high school, in which case child support terminates at graduation or age 19.

Concerned about custody and visitation issues in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

 

Read more on Child Custody

Download Virginia Divorce Forms

[Virginia Code - Title 20 - Sections: 20-107.2]

Marriage Annulment - Marital Annulment

A marriage annulment is a legal process where a party to a marriage petitions the court to have the marriage annulled, or rendered as never having existed. Wave the magic legal wand and poof, it's toast. The burden of proof is greater for an annulment than it is for a dissolution (divorce). In an annulment proceeding, the petitioner must prove with (often with witnesses and exhibits) evidence. Grounds for annulment in Kansas include:

• Fraud and Duress - If your spouse used fraud to obtain your consent for marriage, or you were under undue duress when you married, you can file for annulment according to Virginia annulment laws,
• Consanguinity or Incest - marrying someone to closely related e.g. having sexual or marital relationship with a natural parent, child, grandparent, grandchild, uncle, aunt, nephew, niece, stepparent, stepchild etc.,
• Same-Sex Marriage,
• Bigamy - is a valid ground for a marriage annulment. You can receive a marriage annulment for bigamous behavior,
• Impotency - Your partner unable to consummate the marriage can bring about an annulment,
• Underage Marriage, and
• Prostitution - You weren't aware she was one when you married.
  

Read on if you want your marriage annulled

[Virginia Code - Title 20 - Sections: 20-38.1; 20-43; 20-45.1, 2; 20-89.1; 20-31.1]

Child Support

Virginia child support laws mandate the family court to make child support decisions and orders based on relevant information submitted to them. Rulings are made in Virginia in much the same way they're made in many states; that is, only the basic facts are considered and many important factors and expenses simply don't factor into the equation.

Virginia child support instructs that courts look at what you earn, what your spouse earns, how many children you have and how the children's time is divided by the two households. Largely ignored by the courts, one's expenses for housing (rent or mortgage), any extracurricular expenses for the child, and how it all impacts the parents. The courts appear to be insensitive to the non-custodial's burden of funding two homes. Despite being required to complete lengthy income and expense forms, the courts really don't take much if any of the information into account when rendering a decision. Medical insurance for the children however, is required. The state's divorce laws specify that the higher wage earner pay for medical coverage as part of VA child support.

Child support figured on gross income and retroactive payments

Divorce laws in Virginia require that child support payments be calculated on 'gross' income rather than 'net' income. This effectively transfers more money to the custodian (leaves the non-custodian with less to get by on) than if it were calculated on a net basis. Virginia is one of 29 states that calculates support in this manner. Courts may order Virginia child support to be paid retroactively to the time the petition was filed, so it's always best to pay a fair amount of child support as soon as the one parent separates from the marital home. You are advised to consult with an attorney if you are still in the marital home and are considering moving to another residence. Courts can and do consider the person leaving a home as abandoning the 'family'. The best advice is to stay in the marital home until you have spoken with a divorce attorney.

 

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

Calculating child support payments can be done using a child support calculator on-line (try AllLaw.com) or more simply, see the child support payment schedule offered by the state. The state also offers a Child Support Enforcement VA portal for those needing help once a child support court order is in place.

The court will have the authority to order a party to provide health care coverage for dependent children if reasonable under all the circumstances and health care coverage for a spouse or former spouse.

This state is similar to other states in their capability to enforce VA child support obligations. Virginia divorce laws permit the state a wide array of enforcement of tools at its disposal. It has the ability to seize income tax refunds, garnish wages, place liens on property, suspend licenses, seize assets and attach property.

Virginia child support ends at age 18 unless the child is still in high school, in which case child support terminates at graduation or age 19.

 

[Virginia Code - Title 20 - Sections: 20-107.2, 20-108.1 and 20-108.2]

Legal Separation - Marital Separation

Virginia does not make available legal processes called "Legal Separation" or marriage separation, which involve an agreement filed with the court. Rather, Virginia allows that a physical separation is a prerequisite to filing for divorce. This is known as a limited divorce in Virginia.

Your status as "living apart" does not require any formal documentation, it means that one person leaves the marriage, and establishes a separate household, with the intention of permanent separation.

A Separation requires one year's time before a divorce can be granted

To get a divorce, you and a witness must testify that the separation was continuously maintained for one year before the date the case for no-fault divorce was filed. However, this period is reduced to six months if there are no minor children and a Separation Agreement is reached, and that separation agreement is signed in front of the clerk of the court.

The Separation Agreement is sometimes referred to as a "Property Settlement Agreement." they usually are is a binding written contract settling all the issues that a court could address in a divorce case: property, debts, pensions, child support, spousal support (a.k.a. "alimony"), and child custody and visitation (a.k.a. "parenting time"). Couples with children will submit a Parenting Plan, and if you two can't agree, the court will do so.

See the divorce discussion on the Virginia State Bar Association web site.

 

Read more on Legal Separation

[Virginia Code - Title 20 - Section: 20-116]

Divorce Settlement - Dividing Marital Assets

You and your spouse will arrive at a divorce settlement of assets and debts between yourselves (and perhaps your lawyers) within a mediation framework, or the court will provide a settlement for you. Should the court impose a settlement, it will determine which assets are marital assets and which are not, and upon that determination divide the marital assets in such a way as to be equitably distributed, although not necessarily distributed evenly. Valuations of properties will be made, and can be influenced by evidentiary hearings. If it becomes necessary, the court will determine value and classify property thusly:

Separate property is all property, real and personal, acquired by either party before the marriage,

all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party,

all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property.

Lock up the assets

If you think your spouse might try to hide assets, or spend them, we suggest you file a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

Concerned about custody and visitation issues in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

 

[Virginia Code - Title 20 - Sections: 20-107.3]

Alimony - Spousal Support - Maintenance

A request for Virginia alimony (spousal support) will be considered by the court after examining the specific facts surrounding the marriage. The receiving spouse must be alive in order for an "estate" to receive alimony. Courts in Virginia are not allowed to award alimony (nor maintenance) to the estate of a deceased person.

If a ground for divorce can be proven against the partner seeking spousal support in VA, such spousal support can be denied unless, the court determines from clear and convincing evidence that a denial of spousal support would constitute an injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties. The court, in its discretion, may decree that Virginia alimony be made in periodic payments, lump sum payments, temporary alimony or any combination thereof.

 

 

Temporary support and permanent support

Formula for determination of pendente lite spousal support:

There will be a presumption in any judicial proceeding for pendente lite spousal support (temporary spousal support) and maintenance that the amount of the award that would result from the application is the correct amount of spousal support to be awarded. If the parties have minor children together, the presumptive amount of an award of pendente lite spousal support and maintenance will be the difference between 28% of the payor spouse's monthly gross income and 58% of the payee spouse's monthly gross income. If the parties have no minor children together, the presumptive amount of the award will be the difference between 30% of the payor spouse's monthly gross income and 50% of the payee spouse's monthly gross income.

[Virginia Code - Title 20 - Sections: 20-95 and 10-107.1 and 20-108.1]

Visitation - Your Child's Time With Each Parent

The parties to a dissolution (divorce) or separation have the opportunity to agree to a visitation schedule which includes the details of the non-custodial's Parenting Time with the children. If the parties cannot agree to a Parenting Plan, Visitation Schedule or Custody Agreement, the court will impose a visitation schedule it deems to be in the best interest of the child. Divorce procedures in Virginia that involve children include the mandate of 'liberal visitation', intended to promote shared parenting.

Make your own Parenting Plan to avoid the court doing it

A liberal visitation schedule can include: alternate weekend visitation (3-day weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer, New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years, Federal Monday holidays, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, a weekday evening or two per week and open communication by phone and computer.

You may wish to get very detailed in the visitation schedule about what is acceptable and what is not. Consider the following: How does the decree define custody? What are the rights and responsibilities? Who has legal custody? Which holiday does the child spend with you? What time and where may the other parent pick the child up? What time should the child be returned home? What is the procedure to follow if either of you are running late and won't be there on time? How much notice should you be given if they are planning a vacation? How far away may the other spouse move? What about future partners? Should those partners stay overnight in front of the children?

Worried about the prospect of custody battles in your future? Want to know how to win a child custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

You can get all these issues resolved ahead of or instead of any legal fees by accessing OPTIMAL a comprehensive on-line software provider to divorcing parents. Visitation schedules can be worked out between the parties with this software, reducing costs and time that negotiating with attorneys involves.

Be aware that you have to guide your side of the divorce. Don't rely that your attorney will think of everything. You set the course; your lawyer navigates. 

Read more on custody and visitation

[Virginia Code - Title 20 - Sections: 20-103]

Grounds For Divorce

The grounds for divorce in the Commonwealth of Virginia are:

• Adultery; or for sodomy or buggery committed outside the marriage;
• conviction of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction
• cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other
• have lived separate and apart without any cohabitation and without interruption for one year.

 

 

[Virginia Code - Title 20 - Sections: 20-91, 96]

Residency - You Must Have Established Residency To File

As is the case in other states, Virginia divorce laws require residency in order for a suit for divorce to proceed. One of the parties must have resided within the Commonwealth of Virginia for at least six months.

Armed forces personnel must have resided in this Commonwealth for six months prior to having been stationed elsewhere in order for a divorce to proceed. Upon separation of the husband and wife, the wife may establish her own and separate domicile, though the separation may have been caused under such circumstances as would entitle the wife to a divorce or annulment.

 

 

[Virginia Code - Title 8 - Sections: 8.01-261]

Mediation - Using A Mediator To Resolve Disagreements

Virginia family courts have the ability to order parents to a dispute resolution evaluation session to be conducted by a certified mediator. Resolution of the divorcing issues is instrumental to moving on.

 

Grandparents Visitation Rights

Federal law allows grandparents the right to petition courts for visitation by the grandchildren. This process can take place during a divorce or as a part of a legal separation. It may be advisable to initiate such a petition during an adult child's divorce process rather than after the conclusion, as a separate action may require additional time and expense. 

Virginians must traverse this legal quagmire (grandparents visitation rights) without benefit of statutes passed by the legislature. There are none. Instead, case law (previous court cases) and references to other interested persons make up the basis for courts rendering a decision.

Concerned about custody and visitation issues in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

Grandparents become persons of legitimate interest in the custody and visitation cases of the grandchild's parents. Persons of legitimate interest are defined as grandparents, stepparents, former stepparents, blood relatives and family members. If you are a parent of a parent who has been to a child whose parental rights have been terminated, you are out of luck and NOT a person of legitimate interest.

In a grandparents (or person of legitimate interest) quest for visitation, they must provide clear and convincing evidence that such visitation is in the best interest of the child.

The court will examine the age and mental conditions of the child and petitioner, the relationship between the petitioner and the child, the needs of the child, the role the parent has played in the care and upbringing of the child, the degree to which the parent is willing to foster a relationship with the other parent, the needs and preferences of the child, any history of abuse or any other relevant factor.

Adoption terminates the visitation right of grandparents.