Addressing Frequently Asked Legal Questions And Concerns
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How does our property get divided?
The easiest way to divide up property, as with all aspects of a divorce, is to enter into a Separation Agreement wherein the parties have agreed as to the disposition of the property. Barring such a document, the Court will divide up the parties’ property (called “equitable distribution”) under the guidelines established by the Code of Virginia. This is a complicated process wherein the Court determines the nature of the each piece of property (separate, marital, or a hybrid of both) and then considers 11 factors set out by the Code of Virginia in dividing up that property which is marital in nature (separate property is awarded to the party to whom it belongs). These factors are:
- The contributions, monetary and nonmonetary, of each party to the well-being of the family;
- The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
- The duration of the marriage;
- The ages and physical and mental condition of the parties;
- The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;
- How and when specific items of such marital property were acquired;
- The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
- The liquid or nonliquid character of all marital property;
- The tax consequences to each party;
- The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
- Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.
As indicated, this is often very complex because there is a substantial body of law discussing the classification of property as separate, marital, or hybrid, and, of course, the factors themselves have been applied in a wide-variety of ways.
What about the custody of our children?
First, there are two types of custody: Legal and Physical. Legal custody is generally the right of a parent to have input as to the educational, religious, and medical decisions regarding the children. Physical custody concerns the actual physical care of the children (i.e. where they live).
In most situations, parents are awarded joint legal custody wherein both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent. Sole legal custody is usually only awarded when one parent is wholly absent from the children’s life or is seriously detrimental to the children; however, if so awarded, the parent with sole legal custody will have the only say in raising the child.
As to physical custody, the Code defines it as either joint or sole; however, Courts typically further define it as four types: (1) Sole; (2) Primary; (3) Shared or Joint; and (4) Split. Sole physical custody is similar to sole legal custody – the parent with sole custody has total custody of the child. Primary physical custody is where the children reside with one parent and the other parent receives less than 90 days visitation a year. This designation primarily affects child support calculations. Shared or Joint custody is where the parties share time with the children more than 90 days a year (varying from 91 days to 50/50). Again, this affects child support calculations. Lastly, there is Split Custody which is where parents split custody of multiple children.
What if the parties don’t agree as to custody/visitation?
If the parties cannot agree as to custody and/or visitation, the Court must determine what is in the children’s best interests (“best interests” is the standard which the Court must follow when determining these issues relating to children). The Code of Virginia provides ten factors that the Court must apply to determine this. These are:
- The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
- The age and physical and mental condition of each parent;
- The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
- The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
- The role that 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, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
- The relative willingness and demonstrated the 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 as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
- Such other factors as the court deems necessary and proper to the determination.
How is spousal support determined?
If the parties agree on a spousal support figure and duration, and that agreement is contained in a Separation Agreement, then that document will control spousal support between the parties (which, absent an unusual issue, the Court cannot alter as it is a contract between the parties). Absent an agreement between the parties, the issue of spousal support is controlled by the Code of Virginia. The Court will consider the circumstances and factors which contributed to the dissolution of the marriage and in determining the nature, amount, and duration of an award, will consider 13 factors under 20-107.1:
- The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and physical and mental condition of the parties and any special circumstances of the family;
- The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
- The contributions, monetary and nonmonetary, of each party to the well-being of the family;
- The property interests of the parties, both real and personal, tangible and intangible;
- The provisions made with regard to the marital property under § 20-107.3;
- The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
- The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
- The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
- The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
- Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
How is child support determined?
If the parties cannot agree upon an amount for child support, the Code of Virginia has a presumptive formula for determining child support to be paid between the parties. This formula is to be used by the Court unless there is evidence for deviation. If there is a sole or primary custody arrangement (the non-custodial parent has less than 90 days visitation a year), the Court utilizes a chart provided in the Code (with the two parents total gross income and the number of children) to come up with a basic figure of total support, which is then modified with health insurance costs for the children, work-related daycare costs, and a few other factors.
If the parties have a shared custody arrangement (the non-custodial parent has more than 90 days visitation a year), the Court utilizes a different formula that takes into account each day above 90 for the non-custodial parent.
As mentioned above, the Court may deviate from the formula-derived support if finds that the application of the guideline formula would be unjust or inappropriate in the particular case. The Court must consider certain factors in making this deviation:
- Actual monetary support for other family members or former family members;
- Arrangements regarding custody of the children, including the cost of visitation travel;
- Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party's employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party;
- Debts of either party arising during the marriage for the benefit of the child;
- Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
- Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
- Any special needs of a child resulting from any physical, emotional, or medical condition;
- Independent financial resources of the child or children;
- Standard of living for the child or children established during the marriage;
- Earning capacity, obligations, financial resources, and special needs of each parent;
- Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;
- Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;
- A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
- Such other factors as are necessary to consider the equities for the parents and children.
How do I get divorced?
In Virginia, divorces are handled in the Circuit Courts, which, by their nature are not set up very well for people to represent themselves (what we refer to as “pro se” parties). This is because there are very specific statutes that control divorces and they can be quite complicated. Each particular locality (what we refer to as “venue”) handles the actual procedure regarding divorces differently. All Courts must follow the Code of Virginia as to the substance of divorce cases, but they are free to adopt their own procedures on handling cases brought in their courts and they vary greatly.
In every Circuit Court, the process is started with filing a legal document called a “Complaint,” which outlines the specific facts necessary to allege to seek a divorce. Unlike in Juvenile and Domestic Relations Court, where most post-divorce matters and matters involving unmarried parents are held, Circuit Court is not form-driven, meaning that you have to create your own filings. Because of the complexities of Circuit Court and divorces in general, I always advise those seeking a divorce to hire competent counsel to ensure your rights are fully protected and to ensure your divorce is finalized properly.
Where do I file for custody/visitation?
Unless the custody/visitation dispute is part of a divorce, you will most likely file in the Juvenile & Domestic Relations District Court of the city where the child has resided for the last six months.
What is a Guardian ad Litem?
A Guardian ad Litem (often referred to as a “GAL”) is an attorney that is appointed by the Court to represent the interests of the children. GALs must be qualified by the Commonwealth. If you are in Juvenile and Domestic Relations District Court, their fees are regulated by the Commonwealth (in Circuit Court, GALs fees are not so capped). A GAL is to, in essence, be the “eyes and ears” of the Court. He/she investigates the matter, speaks to the parties, the children, and all relevant persons to come to an opinion as to what is in the children’s best interest. The GAL then makes a report to the Court of his/her findings, which Courts usually give great weight. A useful reference is the Standards to Govern the Performance of Guardians ad Litem for Children, ordered to be drafted by the Supreme Court of Virginia.
What is DCSE?
“DCSE” is the Department of Child Support Enforcement. It is an arm of Virginia’s Department of Social Services tasked with enforcing child support. It can be involved in a case either by a request by a parent for child support (administrative orders) or be involved through the Court to assist the person seeking support. Often times payment of support is ordered by a Court through DCSE (who then administratively collects and monitors support).
A party seeking support does not have to use DCSE if they choose to proceed with a private attorney or on their own (or after a case is concluded they prefer to be paid directly).
How long does my child get child support?
Absent an agreement between the parties to pay for a longer period of time, child support will continue to be paid for any child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever first occurs. The court may also order the continuation of support for any child over the age of 18 who is (i) severely and permanently mentally or physically disabled, (ii) unable to live independently and support himself, and (iii) resides in the home of the parent seeking or receiving child support.