Family Law

Family Law

A Virginia Citizens’ Guide to Divorce and Custody Law

All of us have been through difficult times in relationships. But nothing is more difficult that dissolving a relationship as intense as a marriage. And when you add children to it, the emotional costs are catastrophic. Although nothing a lawyer can say will make you feel better personally, the guidance a lawyer can give you through the process of divorce and custody will give you the piece of mind that you will get through this and will rebuild your and your children’s piece of mind.

What follows is a simple outline of how divorce and custody works in Virginia. Simply skim through the questions and click on those that interest you.

Divorce in Virginia: An Overview of Current Law

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Law in the US and Virginia come to us through two means; statutory law (laws that have been passed by the Virginia General Assembly, signed by a Governor and appear in the Code of Virginia) and common law (laws that transferred to us from England in the 1600’s).

All statutory law appears in the Virginia Code. So you can easily find it. In fact, it’s now on line!

(http://leg1.state.va.us/000/src.htm).

So if you ever want to know what the law is on divorce and custody, you can look it up yourself. There was no divorce in old England. So there is no common law on divorce.

Nothing in the law is this simple. And I must tell you about another place law is made – the Courts. The way it is supposed to work is that when the Code of Virginia does not exactly dictate how a situation is to be resolved, the Courts of Virginia interpret it. So, in addition to the Code, a lawyer searches the opinions of the Courts to “fill in the gaps.”

In the end, if there is a law that you do not think is fair or working properly, the way to change it is to call your Delegate or Senator and ask them to pursue a bill to change it. If it passes, then the Courts have to follow that new rule, and all the decisions they made concerning the older version of the law are tossed out.

There are actually two types of divorce in Virginia. The first is called “bed and board” divorce. The grounds for this type of divorce are either cruelty or desertion [1]. The effect of a bed and board divorce is that the two people will be declared separated and their personal rights and property protected. Though the people are decreed to be legally separated, under bed and board divorce neither person can marry again while the other is alive [2]. Quite frankly, I have never heard of anyone using this method as a permanent arrangement!

The other type of divorce is called “final divorce,” which allows an individual to remarry someone else if he or she so desires. This is the more common type of divorce.

Generally speaking, you do need a legal reason for a divorce. Virginia does not allow a divorce based on “irreconcilable differences,” which is allowed in some other states.

Virginia recognizes divorce for “Cause” and also “Un-contested” divorces. When people think of divorce, they often think of the “cause” type because it is much more dramatic; however, these days it is actually much less common than the “Un-contested” type (also known as “no fault divorce”). The grounds for “Cause” include: adultery, sodomy, buggery, conviction of a felony, cruelty and desertion. Thus, for example, if a husband is sleeping with another woman, then the wife has grounds for divorce based upon the “cause” of adultery.

An “Un-contested” divorce can be granted if the husband and wife have lived “separate and apart” for one year or for six months if there are no minor children. In addition, the couple often negotiates a signed a written agreement, commonly called a “Separation Agreement.” We will discuss this later, but basically, it sets forth the agreement of the Husband and Wife on how they want to separate their property and whether they agree to spousal support. If they have kids, the separation agreement will additionally set forth their agreement on custody and child support.[3] Even though this is known as the “no fault” divorce, you still have to have been separated for one year or six months depending on the circumstances—so that is the legal reason for the divorce.

During the process of a divorce, the court can make orders called pendente lite relief. Basically, this is a fancy Latin word for a court order that states what happens pending the divorce proceedings up to the final order of divorce. If there is a dispute as to things like who lives where, who pays what bills, who gets what property pending the final divorce, who gets custody, how much is child support, should there be spousal support…, these are heard at a pendente lite hearing, which is usually the first hearing in the divorce process.

No. In fact, if you can agree with your spouse, then there is no reason for a hearing. And this saves you lots of money because every hearing will cost you attorney’s fees.

In contested divorces, a pendente lite hearing becomes very important as it relates to custody. Thependente lite hearing will be the first court decision regarding custody and support of children.[4]

Not necessarily. Remember that these are decisions “pending” a final divorce hearing, so they are not final decisions, and any issue addressed by these orders will be readdressed later in the proceedings. With that said, when it comes to custody, the results can have implications later. It is not uncommon for a spouse to argue that “since the children have lived with me since our separation, and since they are used to being here and have been doing well, it is in their best interest to stay with me.”

As we will discuss later, in matters of custody, the “best interest of the child” standard is used. And if, in fact, the children have been doing well where they have been “pending” the divorce, it is a valid argument to maintain the same custody arrangement as was ordered at the pendente lite hearing. This may not seem “fair” in some instances, but the court is going to be most concerned with acting in the “best interest” of the children.

Custody Q & A

There is really only one rule to remember here: Whatever is in the best interests of the child is what the Court must do. Often, this may create a result grossly unfair to one parent. However, fairness is not what the Court looks at. The Court only looks at what is in the best interest of the child.
As stated above, the court first decides child custody at the pendente lite hearing based on the rules set forth in the Virginia Code Section §20-103. The final ruling on custody is then made at the final divorce hearing. The court also has the ability to change the custody decision at a later date if there is evidence of a material change in circumstances and which affects the best interest of the child.

There are several types of custody: Legal and Physical. Legal custody determines who can legally decide matters for the child. Physical custody sets forth with whom the child stays at any given time.

Yes. Legal and Physical custody can be either “Joint” or “Sole.” Joint custody means that the parents share legal or physical custody[5]. Sole custody means that only one person has legal and/or physical custody[6].

Not necessarily. In fact, sole custody is almost always accompanied by a rule on visitation. (When one parent has custody of the child, the time the other parent spends with the child is called visitation.)

Yes. Custody arrangements can have all sorts of forms. For example, there seems to be little practical difference between Joint Custody, and Sole Custody that is accompanied by extensive visitation. It really depends on how well you and your former spouse are able to work together.

In our experience, custody hearings can be the most acrimonious, and thus, the most expensive. As we stated before, if the couple can agree on the rules of custody, the Court 99% of the time will adopt them. So if you can agree, you can save yourselves tens of thousands of dollars in legal fees, not to mention the emotional well-being of your children – and yourself for that matter. My advice is to do whatever you can to reach an agreement with your spouse on all issues of divorce, but especially on custody.

It happens. Sometimes, one spouse is just not cooperative. It takes two to make an agreement. So, there may be valid occasions for a contested custody case. Unfortunately, these can be draining both financially and emotionally. Ultimately, it may become necessary, but custody litigation should be your last resort.

We hate to sound like a broken record, but it’s “The best interest of the child.” That is the only rule you need to know!

The Virginia Code gives Courts the right to make this determination. And this is another reason why you should try to resolve these matters in consultation with your former spouse. If the parents of the child can’t decide these matters, the Court will.

Best interest of the child means that the court will focus on what is best for the child. Incorporated into this is the premise that kids do best, when appropriate, to have contact with both parents. (We say “when appropriate” because there are sad cases of abuse and neglect that require the court to suspend or even terminate contact of one parent with their own child).

The factors that the court uses to determine custody are the age, physical and mental conditions of the child and of each parent. The court also takes into account the current relationship between the child and each parent and the role that the parent currently plays and will play in the future in the child’s life. The impact on other relationships the child has with siblings, friends and extended family members and each parents’ willingness to support the other parent’s continued interaction with the child are considered. The willingness and demonstrated ability of each parent to maintain a relationship with the child is considered, as is the parent’s willingness and ability to handle any problems that may come up.

A judge is never allowed to favor one side or the other. Why? Because the test is “What is in the best interest of the child.” Thus, the court will not make presumptions in favor of one of the parents[9].

Property Q & A

You may have heard about some states that have a 50/50 rule that simply just splits the property in half. Virginia uses a different rule called “Equitable Distribution.”

No, but at the pendente lite hearing, often the Court will rule that the spouses have to preserve the property pending the final divorce (e.g. you can’t go cash out your 401K and spend it). The final ruling about property separation is made at the final hearing.

No, and it is not a good idea to think this way. The assets are ultimately going to be divided according to the requirements of the Virginia Code for equitable distribution. Again, not to sound like a broken record, but if you can agree on who gets what property, you will save yourself thousands in attorneys’ fees. When we have represented people in divorce, we always explain that every dollar you are spending on attorneys is one less dollar there is to separate between you and your spouse. For example, if you have $100,000 in assets and think that you should get $60,000 and your spouse should get $40,000, then why would you want to spend $20,000 in attorney’s fees for the

of getting a judge to agree with you? If you won, you would get $60,000 but you would have spent $20,000 to get it – thus putting only $40,000 in your pocket. So why not just “plug your nose” and agree to get $50,000? That way, you are guaranteed to get $10,000 more than you would if you went to trial on the property separation issue. Hey, don’t get us wrong! We lawyers like when you hire us to litigate cases, but you really should “run the numbers” before you choose litigation.

Yay! You are both reasonable, and have found the secret to an uncontested and inexpensive divorce. If you and your spouse agree to how the property is to be separated, then in 99% of the cases, the Judge will do just as you agreed.

If you disagree, then at the property separation hearing, you present your side, your spouse presents his/her side, and the Judge then divides the property between you at the final divorce. While “equitable distribution” is supposed to be based on “what is fair”, over the years, it has become a quite mechanical process. Basically – or should I say very basically because this is a very complicated process – the Court gives each spouse their own separate property (e.g. property they brought into the marriage) and then splits the marital property (e.g. the property they acquired during the marriage) based upon what is “equitable.”

Often there is a question on what property is worth. For example, one spouse who is not going to live in the home and wants ½ of the equity may say the house is worth $600,000 while the spouse who intends upon staying may say the house is only worth $500,000. In these cases, the attorneys undergo a process of valuation and classification of the property[10]. The property is valued as of the date of the hearing or, if one spouse wants a different date, they can ask that the date of value be based on a date at least 21 days earlier. You determine what it is worth in the same way you would in a business deal. To value a house, you would have to hire an expert real estate appraiser. For a 401K, you would use the stock values. For a car, you may use Kelly Blue book.[/wptabconttent]

This is all property that belongs to one person, not both. Property that only one person owns includes property from before the marriage and property given specifically to one person as a gift or in a will. It also includes property that one person bought during the marriage using other separate property and which they kept as separate property. Income from that separate property received either directly as income or as an increase in value is also counted as separate property if the other spouse who doesn’t own the property didn’t influence the change in value.

This is all property, which is titled to both parties or is part of a property that is titled to both. Property which was acquired during the marriage and doesn’t qualify as separate property is marital property. Good examples of marital property are houses purchased during the marriage, pensions, profit-sharing or deferred compensation or retirement plans earned during the marriage. Marital property is assumed to be jointly owned unless there is proof that it is not.

This is often property that depending on evidence can be either marital or separate property. If the increase in value of separate property is directly related the other spouse or the addition of marital property, the increase in value is marital property. However, the person who does not own the property has to prove that the increase in value was directly related to their contribution or the marital property. If this cannot be proven, the increase in value is still separate property. If the separate property was combined with marital property and can be easily indentified, the separate property retains the separate identification. However if the property cannot be easily identified, the whole property becomes marital property. If separate property was retitled under both names, then it becomes marital property unless there is evidence the original property can isolated, in which case it is separate property. Also if one person’s separate property was combined with the other person’s separate property and it cannot be divided, then it is hybrid property and each person can be reimbursed the value of the original contribution. This understanding of hybrid property applies to pensions, profit-sharing, deferred compensation plans or retirement benefits.

Once the property has been valued and classified, if either party disagrees with the classification on any of the properties they are responsible for proving the property should have another classification.
More information on property types in in the Virginia Code.[11]

After the valuation and classification, the court considers the distribution. Here is where the “equitable” part of equitable distribution comes into play. There are several factors the court considers including the contributions of both people to caring for the family and the property[12]. The court also looks at the marriage including how long the marriage lasted and the contributing factors which led to the divorce. The court looks at both parties including their age, physical and mental condition, debts and liabilities and the reasons for these. It also looks at the tax consequences to each person. In addition, it will look at how and when the marital property was acquired and how liquid that property is. If either spouse used or sold marital property by themselves in preparation for the divorce or separation, the court may take that into consideration as well as any other factors that the court feels are necessary to consider.

Once these decisions are reached, distribution is made by the sale or division of jointly owned property and in the form of monetary awards.

Spousal Support Q & A

Yes. In addition to distributing property, the court has the authority to award spousal support if it determines that support of one spouse by the other after separation and even after the divorce is necessary[13].

This decision is made at the pendente lite hearing based on Virginia Code Section §20-103 or at the final divorce hearing. However, if there is a contract that both people sign which is filed before the final decree, the court will follow what is in the contract relating to spousal support (this is called a pre-nuptial agreement).

Not always. Because the awarding of spousal support is only awarded if the court feels that it is necessary, the court must first decide whether to award support in the first place.

The court looks first at fault and the circumstances and factors leading to the divorce. This specifically includes adultery, cruelty or if one spouse is convicted of a felony and the couple has not lived together after the release[14]. If both spouses have grounds for divorce because of adultery, then neither can receive permanent support, unless the court allows an exception. Exceptions are based on the degree of fault of each person and the economic circumstances of each.

If the court decides to award spousal support, it must then decide the nature, amount and duration. There are several factors which impact the decision[15]. The court will look at the marriage, including how long it lasted, the standard of living established during the marriage and the contributions that each made to the marriage. Also the financial obligations including taxes and resources including property of each are considered. Age, mental and physical condition and special circumstances in the family are considered. Finally the earning capacity of each spouse and the cost of a spouse to improve their earning capacity is considered. This is looked at especially in connection with the choices each made about their jobs, education or parenting during the marriage. Based on these criteria, the court issues written findings about the factors and awards the support in one of four ways: (1) as a lump sum, (2) for a defined duration, (3) for an undefined duration, (4) or in a combination of these. This is completed at the final divorce hearing.

No. Spousal support (and child support) can be changed if there is a material change in circumstances, which allows the court to review and change the award. For example, if a spouse if the paying spouse loses their job, the court may want to re-evaluate the matter.

Yes, but this will automatically terminate your spousal support without a hearing. Remarriage automatically terminates the spousal support and it is the responsibility of the spouse receiving the support to notify the former spouse who is paying the support.

You can try, but you will be inviting your ex-spouse to petition the court. Others have tried this approach in the past, and the law allows the paying spouse to request termination of the support in such circumstances. If the paying spouse has evidence that the other spouse is in a relationship that is the same as a marriage, mainly that the spouse has been living with someone else for one year or more, the paying spouse can petition the court to end the order of support. If the paying spouse can prove that the other should no longer receive support, it is up to the receiving spouse to prove that it would be unconscionable to end support.

If an expected event which was influential in ordering the support does not occur, either the payer or receiver can petition the award to be changed, but the person petitioning cannot be responsible for the event not happening. Also, the death of either spouse ends the spousal support.

Child Support Q & A

In addition to awarding spousal support the court can award child support. Child support is awarded at the pendente lite hearing and again at the final divorce hearing. The award can be changed later if there is proof of a material change in circumstances. In awarding the child support, the court will first calculate the basic child support which is based on the guidelines in Virginia Code Section Virginia Code Section §20-108.1 and §20-108.2. You can look up this chart in the code yourself and calculate the basic child support requirements. The numbers included in this chart are assumed to be accurate, unless there is proof that it is not appropriate under the specific circumstances.

Yes. After the basic child support is determined, the amount of child support is calculated to include other costs with a formula based on the type of custody. When the court awards the support, the Court presents its findings including if the guideline calculations and any additions or subtractions to it that were considered.

There are several reasons that the court may change the basic amount of support from the guidelines including the amount of support the parents provide for other family members, special needs or obligations, resources of each parent, and the parent’s tax consequences. The court will also consider the cost to the parent to visit the child if that parent only has visitation rights and debts that have arisen against a parent because of the child. In addition, the court considers the standards of living the child had during the marriage and considers education costs and costs if the child has special needs and if the child has their own money. If there is a large increase in money, for example from the sale of the home lived in during the marriage, or the property provides an income, the court takes the effect into consideration. In addition to these factors, the court can use any factors that it feels is necessary to make the decision.

When you look at the child support guidelines, you will immediately see that the main factor in determining child support is gross income.

Gross income is all income from all sources[16]. Sources include salaries, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, some social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes, awards or any other source of income.

No. Although it includes most forms of income, it does not include benefits from public assistance and social services programs listed in Virginia Code Section §63.2-100, federal supplemental security income benefits, child support received or income which is used only to pay late child support and is known as “secondary employment income”. Secondary employment income includes income from an additional job, self-employment or overtime employment and when the additional income stops, there is no material change in circumstances.

This is done because people would go get a second job in order to obtain money for child support and the second job would then increase their guidelines payments. So this discouraged people from getting second jobs and thus discouraged people from paying their support. To eliminate this “Catch 22” the legislature exempted the second job when it is used only to pay support.

Certain disability insurance benefits are calculated differently. For example, the insurance increase that a parent pays because of the child is calculated in gross income, but the amount can be credited to that parent’s child support payment.
In addition, there are other expenses which can be deducted from gross income. These include reasonable business expenses from incomes from self-employment, a partnership, or a closely held business and one half of any self-employment tax. Some support payments can also be deducted, depending upon the circumstances.

Yes. For example, the cost of health care coverage and the cost of employment-related childcare are added to the amount of child support owed. The health care coverage cost is the additional cost directly related to covering the child. The cost of employment-related childcare is the cost of providing quality care while the custodial parent is at work. At the request of the non-custodial parent, the court can require documentation showing the cost of the childcare and increase or decrease the child support amount. By the request of either parent, the court can take the impact the childcare costs have on the parent’s taxes into account and change the child support accordingly.

In addition to the health care coverage, each parent is expected to pay a portion of all medical and dental expenses not reimbursed over $250 per year. The amount each parent pays is proportional to their gross income, but does not impact the amount of child support they are expected to pay. This is in addition to the monthly child support amount and the courts will automatically apply this after the amount of child support is calculated no matter the type of custody. If there is good cause or an agreement between the parents, the court will follow what was decided.

Once the court has determined the basic child support amount, either from the guidelines or through separate calculations, and the amounts of the other costs, the court will award support based on the type of custody. No matter the type of custody, the total obligation is the monthly basic child support obligation plus the costs for health care coverage and the work-related child-care costs. If the child is a recipient of Medicaid or the Family Access to Medical Insurance Security Plan the cash medical support is also added to the obligation. The total includes the basic obligation and costs for both parents.

To calculate the monthly obligation of each parent, each parent’s contribution to the total monthly combined gross income, also known as the income share, is multiplied by the total monthly child support obligation. This means that if each parent contributes 50% of the income share, then each parent will pay 50% of the total monthly child support obligation. Similarly, if one parent contributes 40% and the other 60% of the income share, then the parents would pay 40% and 60% respectively of the total monthly child support obligation.

As stated earlier, the Virginia Code defines only defines two types of custody; sole custody and joint custody. “Sole Custody” is pretty self-explanatory—it means that on person retains sole responsibility for the care and control of a child and has primary decision making authority for that child. “Joint Custody,” on the other hand, encompasses multiple arrangements, including “Shared Custody,” “Split Custody,” and “Divided Custody.” Each of these terms is a type of “Joint Custody” where both parents retain some responsibility and decision making authority in one form or another.
Finally, the court may award limited or extensive visitation rights to a non-custodial parent.

For sole custody arrangements, the non-custodial parent pays the custodial parent his/her share. However, the amount the noncustodial parent is responsible for may be reduced by the cost of the health care coverage when it is paid by the noncustodial parent.

Split custody only occurs in families that have two or more children. For split custody, each parent has custody of at least one of the children from the marriage. To calculate the amount of child support owed, the amount of child support is calculated for each child with the formula above. Each parent is responsible for their share of the child support for all the children. Once both parents’ responsibilities are calculated for all the children, the amount owed is the difference between the amounts the two parents are responsible for. The difference is what the parent owing the larger amount pays to the parent owing the smaller amount.

Shared custody means that the parents willingly share child care responsibilities and decisions at all times, regardless of which parent may have physical custody at any one given time. Divided custody means a child lives alternatively with one parent and then the other for specific durations of time and during those durations, the parent with whom the child is residing retains responsibility and decision making authority for the child.

Usually these arrangements entail one parent having physical custody for more than 90 days in a year. If that is the case, that parent’s custody share can be calculated by using the formula described above and then taking a proportion of that amount equivalent to the number of days the parent has the child dived by the number of days in the year (365).

In the event that the court awards more than ninety (90) days per year of visitation to a non-custodial parent, the non-custodial parent’s child support obligation is calculated using the formula above and then taking a proportion of that amount equivalent to the number of days the parent has the child divided by the number of days in the year (365).

In the event the court awards less than ninety (90) days per year of visitation to a non-custodial parent, the non-custodial parent’s child support obligation is calculated using the formula above; however, he or she cannot then offset the days during which he or she has the child for visitation (as he or she can if the visitation arrangement is greater than ninety (90) days per year).

We are often asked by the non-custodial parent who pays child support to the custodial parent, ‘Why don’t I get credit for the money I spend taking care of junior when he/she is with me?’ This topic has been debated by the legislature for years. To address this, the General Assembly created the “90 day rule.” This rule gives credit to a non-custodial parent for expenses where the non-custodial parent has the child for more than 90 days. There is no real scientific reason why 90 days was picked. Like a lot of things in law, it is a number that came up as a compromise between the proponents and opponents of the legislation. Custodial parents say that the child support guidelines are set slightly lower than true child care costs with the fact in mind that non-custodial parents will be expending sums on the days they have visitation. Non-custodial parent advocates say that the guidelines are too high and don’t give them enough credit. So, while it is an arbitrary number, 90 days is the number upon which the majority agreed.

It is important to remember that the court can and will consider other issues when making these calculations. For example, the court will want to ensure that the amount of child support will allow the custodial parent to maintain minimum standards. The court will want to ensure that the custodial parent can provide minimal adequate housing and other basic needs to protect the best interests of the child.

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