Family law situation are often stress full and take an emotional toll. If you are facing a divorce, custody battle, property division/equitable distribution matters, spousal support and child support battles, or you need a protection order, it is important to have a competent attorney on your side to protect your best interests. Representing yourself may put you at risk of losing rights to your children, and your assets such as your home, your property, and your retirement. You need a competent attorney who understands the law and knows how to protect your best interest.
Living through the breakup of a marriage is not easy regardless whether you are the one leaving or the one who is being left. Most often you are faced with feelings of loss, failure and the possibility of an uncertain future. At Selje Law, PLLC we know each divorce case is different and our attorney will provide you with the personalized, individual attention required. We are here to answer all your questions and help you navigate the complexity of Virginia Family Law.
In Virginia a valid marriage can only be terminated by annulment, divorce, or death. Virginia courts generally grant Annulments in cases of Bigamy, Incest, and Nonage all of which render a marriage void, or in cases of Fraud or Duress, Mental Incapacity or Infirmity, Intoxication, Felony Conviction, Impotency, Concealment of Parenthood, and Prostitution, all of which render a marriage voidable. A void marriage is treated as if the marriage never happened and a voidable marriage is valid until one spouse seeks to legally void the marriage.
Divorce is the legal separation of husband and wife effected by the judgement or decree of court. There are two types of divorce in Virginia, the Judicial Separation, also called Divorce from Bed and Board or Divorce a Mensa et Thoro and the Absolute Divorce, also called Divorce from the Bond of Matrimony or Divorce Vinculo a Matrimonii.
If a Judicial Separation was granted by the court the parties are only separated, but their marriage continues to be legally valid. In such a case, neither party may commit adultery or remarry as long as the other party is still alive.
There must be grounds for a Virginia Court to grant an Absolute Divorce. Virginia recognizes four fault grounds, adultery, including sodomy or buggery, conviction of a felony, willful desertion, and cruelty. In addition Virginia also recognizes a “no-fault” ground which is based on separation without cohabitation.
In the instances of adultery and the conviction of a felony, no waiting period is required to file for Divorce with the court, however, in the event of cruelty, willful desertion or abandonment, and in the case of the “no-fault” ground, based on living separate and apart without cohabitation, for a period of one year, a waiting period of one year is required before filing for divorce. In the event parties have reached a separation agreement and they do not have minor children, a court may grant an Absolute Divorce as long as they have lived separate and apart without cohabitation for at least six months.
Property Division/Equitable Distribution:
Virginia Courts follow the theory of equitable distribution in matters pertaining to the division of marital assets. The objective here is to order a fair distribution of all marital property. The equitable distribution of marital assets is not necessarily and equal, 50-50, division.
The distribution of marital property is a four-step process:
- Determine the ownership and worth of all property,
- Determine which property is marital, part-marital and part-separate, and which property is separate/non-marital, Va. Code Ann. §20-107.3 (E),
- A set of statutory factors is used to determine how to divide the marital property,
- Award jointly owned marital property and debts to each spouse and if appropriate, grant a monetary award.
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Spousal Support, also referred to as maintenance or alimony, is the obligation of the spouse with the greater financial resources to provide monetary support to the other spouse. In Virginia spousal support is awarded in the event that one spouse cannot provide for her own needs. Spousal support can be awarded when a Virginia court decrees an annulment of a voidable marriage; an absolute divorce or judicial separation; that neither party is entitled to a divorce; or when separate maintenance for either party is appropriate. In addition, temporary spousal support during the divorce proceedings, called Pendente Lite Relief, can be awarded.
Once the court has determined that an award of spousal support is appropriate, the court will use a set of statutory factors to set the nature, amount, and duration of the spousal support award. Va. Code Ann. §20-107.1(E).
No spousal support may be awarded to a spouse who committed adultery, unless the court finds that the denial of supposal support would constitute a manifest injustice.
Note, Divorce is an equitable proceeding and fault in equity may only be raised by a Plaintiff with “clean hands,” meaning a spouse who, for example, committed an act such as adultery, or is found guilty of a felony, cannot raise a fault based claim against the other spouse.
The Virginia Court of Appeals held that the trial court decided correctly in granting the divorce to husband who was incarcerated for a felony and sought the divorce. The Court further held that the trial court also decided correctly in ordering the husband to pay support to wife who committed adultery given the husband’s own fault. Bandas v. Bandas, 430 S.E.2d 706 (Va. Ct. App. 1993).
In general the court can modify spousal support orders to increase, decrease, or terminate payment upon petition of either party if there has been a material change in circumstances of the parties that was not anticipated by the parties at the time of the award, unless the parties contracted otherwise.
In Virginia, both parents, regardless of marital status, are legally required to support their minor children. The support obligation remains until the child reaches the age of 18 or is emancipated and may be extended until the child reaches the age of 19 or graduates high school, which ever comes first. The court may also order the continuation of child support for any child over the age of 18 if the child is severely and permanently mentally or physically disabled.
The amount of child support awarded is generally based on child support guidelines adopted by Virginia. The purpose of the guidelines and resulting order is to provide the child with a similar standard of living that the child would have received if the parents had not divorced. Virginia has adopted an income shared model, which is based on the theory that a child should receive the same proportion of parental income as if the parties continued to live together. The total monthly child support amount is divided between the parents in the same proportion as their monthly gross incomes bear to their monthly combined gross income.
If a parent is unemployed or underemployed the court may impute an income to calculate child support. Furthermore, Virginia has a presumptive minimum child support obligation of $68 per month payable by the payor parent.
Parenthood of the mother is established by proof of her having given birth to the child. Parenthood of father is established by a rebuttable marital presumption, generally, a child born to a married woman is the child of that woman and her husband, unless the party claiming illegitimacy can show that another man is the father, or that it is impossible or improbable that the child was fathered by the husband.
Further, paternity can be established through genetic testing, including blood tests, acknowledgement through a voluntary written statement of father and mother made under oath, or other evidence of paternity.
When paternity has not otherwise been established, the following parties may bring an action to determine the paternity of a child: the child; persons standing in loco parentis to the child or having legal custody of the child; a person claiming parentage; a parent; or a representative of the Department of Social Services or the Department of Juvenile Justice.
Custody and Visitation/Parenting Time:
Having custody of a child can mean having legal custody or physical custody, or legal and physical custody.
Legal Custody is the right of a parent or guardian to make major decisions regarding the minor child. This means decisions regarding health, education and religion pertaining to the minor child are made by the person who was awarded legal custody. Legal Custody may be shared by both parents – joint legal custody.
Physical Custody is the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child. Physical Custody may be shared by both parents – joint physical custody.
Joint physical and or legal Custody is favored by Virginia courts. This arrangement generally requires that parents are both willing and able to cooperate with respect to the well-being of their child.
Under a joint legal custody arrangement, neither parent has a superior right to make major decisions. How conflicts are resolved is typically spelled out in the custody and visitation order. Joint legal custody is the outcome in the majority of Virginia Custody cases.
Joint physical custody does not necessarily mean a 50-50 sharing arrangement. It can be any arrangement in which the child maintains a residence at the home of each parent and spends significant amounts of time with each parent.
In Virginia neither parent has a legal presumption favoring them as the custodial parent. The standard Virginia courts use to determine custody is the Best Interest of the Child Standard. Va. Code Ann. §20-124.3.
Generally, the noncustodial parent is allowed reasonable visitation with a minor child. The award of visitation / parenting time is typically only an issue when it would seriously endanger a child’s physical, mental, or emotional health. Under certain circumstances the court may decide to place restrictions on the exercise of visitation. The decision of the court regarding Visitation / Parenting Time is also based on the Best Interest of the Child Standard.
All Custody and Visitation Orders are modifiable upon request of a party, a Department of Social Services petition, or the court’s own motion in the event a change of circumstance has occurred since the most recent custody order was entered.
A Separation Agreement is a contract between the spouses. By these agreements the spouses have resolved all or most of the issues in regards to their separation and in the event of their divorce. They spell out the rights and responsibilities of each spouse during this time of separation and beyond. Generally this agreement should address all issues including child support, custody and visitation, spousal support, and division of marital property and debts. Even in instances where parties cannot agree on all the issues, it may still be advantageous to have an agreement at least in regards to the issues you both can agree on. One benefit of a separation agreement is that you have the opportunity to decide the terms of your separation and divorce rather than having a third party, the judge, decide these terms.
In Virginia Domestic Violence is described as family abuse involving acts of violence, force, or threat that results in bodily injury or places a person in reasonable apprehension/fear of death, sexual assault, or bodily injury and that is committed by a person against such person’s family or household member.
Persons considered “family or household members” includes the person’s current spouse, former spouse, parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents, and grandchildren regardless of whether such person resides in the same home with the person who has committed the domestic violence. Furthermore, parents in-law, sons-in-law, daughters-in-law, brothers-in-law, and sisters-in-law who reside in the same house also are considered family or household members. Also, persons who have a child in common regardless of whether or not they have been married or ever resided together, and any individual who currently resides or has resided with that person within the past 12 months, as well as any children of either of them who resided in the home.
There are three types of Protective Orders in Virginia:
The Emergency Protective Order, any judge of a circuit court, general district court, juvenile and domestic district court, or magistrate may issue a written or oral emergency protective order. This order is generally issued in an ex parte hearing based on a sworn statement by a law enforcement officer or the alleged victim. Emergency Protective Orders can be issued 24 hours a day, 365 days a year. The Emergency Protective Order expires 72 hours after it is issued. If the order expires at a time the court is not in session, the order is extended until 5:00 p.m. on the next business day that the court is in session.
Because the Order is issued without an opportunity of the defendant to be heard, a copy of the order must be served on the defendant as soon as possible; at any time the defendant may file a motion asking the court for a hearing to dissolve or modify the emergency protective order, and the court should grant a hearing as soon as possible. Furthermore, when an order has been issued without notice to the defendant, the issuance of the order cannot be used as evidence to prove that abuse has occurred.
The Preliminary Protective Order, upon filing a petition with the Juvenile and Domestic Relations District Court, the court may issue a Preliminary Protective Order. Like the Emergency Protective Order, the Preliminary Protective Order can be issued ex parte if the petitioner presents evidence showing that the petitioner faces “immediate and present danger” of family abuse, or evidence that family abuse has recently occurred. In this proceeding the petitioner has to swear under oath that these circumstances exist.
The defendant will have to be served with a copy of the order for the order to be effective. The order will provide for a date and time when the hearing for a Permanent Protective Order takes place. This hearing must be be held within 15 days of the issuance of the ex parte Preliminary Protective Order. If that hearing should be continued the Preliminary Protective Order remains in effect until the hearing.
The Permanent Protective Order hearing requires notice to the defendant to provide an opportunity for the defendant to be heard. At the hearing, the petitioner and the defendant have an opportunity to present evidence to the court. If the court finds that the petitioner has proven the allegations of family abuse, the court may issue a Permanent Protective Order. If the court finds the evidence presented is insufficient proof, the court will dissolve the Preliminary Protective Order and dismiss the case.
The court may issue a Permanent Protective Order for a specific period of time, up to a maximum of 2 years. During the time a Protective Order is in place, either party may at any time file a written motion requesting a hearing to dissolve, modify, or extend the order.
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