Answers to All of Your Virginia Legal Questions
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In a divorce, what counts as desertion or abandonment? Are they the same thing?
While desertion and abandonment are usually used interchangeably in divorce cases, there is actually a distinction between the two.
“Desertion” is the breach of the duties stemming from being married. First, there must be a break from living together as spouses (“cohabitation”). Second, there must be intent to desert in the mind of the deserter. You must have both to establish desertion. Desertion does not depend on who actually leaves the family home. Desertion can be “constructive,” which is where one spouse commits cruelty toward the other spouse, resulting in the innocent spouse leaving the marital residence. The innocent spouse didn’t desert the marriage by leaving, he/she left due to the bad acts of the other spouse.
“Abandonment” is when there is evidence to show that “ a person has left his or her spouse or his or her child(ren) in a destitute or necessitous circumstances, or has contributed nothing to their support for a period of thirty days prior or subsequent either or both to his or her departure…”
Do I have to allow visitation if I am not receiving child support?
Yes. If your child’s other parent is not paying child support, you may not withhold visitation. On the flip side, if your child’s other parent won’t let you see your children, do not withhold child support. Either instance could lead to jail or fines. Make sure you document any and all interactions concerning the issues. If the two of you can’t resolve your problems, contact your lawyer to discuss your options.
Can we determine custody or child support in the prenuptial agreement?
Not advisable. The courts always have the authority to determine custody and child support matters and will ultimately determine what is in the best interest of the children. If you were to define custody or child support matters in a prenup, circumstances will necessarily be different should you ever separate due to the passage of time. Therefore, the terms in any prenup would almost certainly not be enforced by a court (as courts can alter these terms even in a separation agreement if the parties later change their mind).
As a grandparent, do I have any legal visitation rights?
Not inherently. This can be complicated because in Virginia there isn’t a specific statute concerning grandparents’ rights. The custody and visitation statutes refer to parents and “persons with a legitimate interest”, which can include grandparents, step-grandparents, stepparents, former stepparents, blood relatives and family members. The courts must consider what is in the best interest of the children and as between parents, the court will apply the ten factors in Va. Code Sec. 20-124.3 to determine visitation rights. Parents trump grandparents, however, and if both parents are against grandparent visitation, then the grandparents have to show more than best interests of the children – they have to show actual harm would come to the children absent them having visitation. If one parent is for the grandparent visitation, however, then the court uses the usual best interests’ standard.
Can a prenuptial agreement be deemed void?
Yes. There are a few things that could void your prenuptial agreement: (1) If the agreement was not signed voluntarily or (2) If the agreement was unconscionable when signed (i.e. grossly unfair – though this has to be more than just lopsided; Virginia law makes it very difficult to find that an agreement is unconscionable) and, before signing, the person wasn’t provided a fair and reasonable disclosure of the property or financial obligations of the other party (assuming that this disclosure wasn’t knowingly and voluntarily waived in writing).
Can a Separation Agreement or Court Order stop my spouse from moving out of state with my children?
Yes. You can always agree to insert a provision into a Separation Agreement limiting the removal of your children from their residential state if that is a concern. If you are in a divorce action and can’t reach an agreement, you can seek relief from the Court on this issue and request a temporary order to protect your rights. The federal Parental Kidnapping Prevention Act was enacted to establish national standards for the enforcement of child custody matters. So, if your spouse takes your children out of state and you have something in place regarding this issue, the other state will honor the terms agreed to in Virginia.
Should I have a prenuptial agreement?
It depends. Although we enter into marriage with the expectation it will be forever, unfortunately, divorce happens. A prenuptial agreement (“prenup”) addresses financial issues and protects the interests of both parties. There are many reasons to have a prenup, including if one spouse has a significantly greater financial wealth or income than the other because the division of property and financial assets can be addressed. If you own a business, having a prenup will ensure that your ex-spouse doesn’t end up owning a share of it. If your spouse comes with significant debt, you can also agree that you won’t be responsible for same. A prenup can ensure that certain properties or inheritances/heirlooms stay in the family. For a second marriage, you may wish to set aside certain assets or provide for children from your first marriage. A prenup cannot address personal preferences, though, such as chore assignments or where to spend holidays.
Do I have to pay child support if the other parent won’t let me see the kids?
Yes. Child support and visitation are separate issues. If the other parent won’t allow visitation, the courts are able to intervene. Contact your lawyer.
Can I change custody/visitation arrangements after the divorce is final?
Yes. Custody and visitation are always modifiable; however, you must prove a material change in circumstances before getting to any changes (which the court will then look at the best interests of the children as to any new arrangement). What constitutes a “material change” varies widely and is case-specific, but some examples of likely qualifying changes are if the other parent has a substance abuse problem, is neglecting or abusing the children, has become seriously physically or mentally ill and is no longer able to care for the children, if there is a significant lack of supervision when with the other parent, or any major change in the situation requiring attention. Do not settle for verbal agreements between the other parent, they are not legally valid. Once a court order is in place, you need a modifying order entered by the court to make any changes enforceable by the court. You can certainly agree to one-time or temporary changes to visitation or custody, but without a replacement order, the other parent can dishonor any agreement reached.
Can I change the child support requirements after the divorce is final?
Yes – child support is always modifiable; however, you must prove a material change in circumstances before getting to recalculation. Qualifying changes vary widely but can include an increase or decrease in either parent’s income or a seriously ill child (physically or mentally) who needs treatment. Do not settle for verbal agreements between the other parent, they are not legally valid. Once a court order is in place, you need a modifying order entered by the court to make any changes to child support.