Answers To Your Family Law Questions
The questions and answers below are intended to provide only general information. The information provided is not a substitute for legal advice. You should consult with an attorney to obtain legal advice about your specific situation.
What if my spouse and I have already reached an agreement?
If you and your spouse enter into a signed separation agreement, resolving all issues arising out of your marriage, then you should be able to proceed with an uncontested divorce case. This type of case is typically resolved quickly and cost-effectively. If you have no minor children and a signed agreement, then you can file for divorce after six months of being separated from your spouse.
You should seek the advice of an attorney before signing any agreement with your spouse.
My spouse will not agree to a divorce. What can I do?
You do not need your spouse’s consent to obtain a divorce in Virginia. You can obtain a divorce, with or without your spouse’s cooperation, so long as legal grounds for divorce exist.
Legal grounds for a divorce from the bonds of marriage are as follows:
- Living separate and apart from your spouse for the required period of time
- Conviction of a felony with one year of imprisonment
You also have the option of filing for a divorce from bed and board (which is a legal separation without the right to remarry) on the following grounds:
- Willful desertion or abandonment
- Cruelty and reasonable apprehension of bodily harm
A divorce from bed and board can later be merged into a divorce from the bonds of matrimony.
Even if grounds for divorce do not yet exist, it may be possible for you to obtain orders for custody and visitation of your children, spousal support and child support in the juvenile court.
How is property divided in Virginia?
Property division is called “equitable distribution.” While some states have laws that require all property to be split equally, Virginia divorce law states that property has to be divided equitably, which is a very important difference.
When equitably distributing property, the court must first identify all assets owned by the parties, classify the assets as either marital property, separate property or hybrid property (part marital and part separate), and then value each asset.
How can value be determined for property such as a business or a retirement plan?
There are some instances where the value of an asset is easily ascertainable such as with investment portfolios, financial accounts and real estate. However, there may be other assets such as business partnerships, stock options, complex deferred compensation plans and retirement plans, where you and your attorney would decide that the best course of action would be to engage an expert.
Your attorney should be knowledgeable about valuation issues and able to identify the best experts for business valuation, forensic accounting and pension valuation.
How is child support calculated?
Virginia has a formula for computation of child support obligations, which is based on:
- Each parent’s income; the number of children
- The custody schedule
- The cost of work-related child care
- The cost of providing health insurance coverage for the child
Though judges presume the sum of child support resulting from this formula is correct, they also have the ability to order a different sum of child support under certain circumstances, which your attorney can explain to you.
After child support is ordered, can the sum of support be increased or decreased?
Yes. A child support order can be re-evaluated and modified if there has been a material change in the circumstances of either party or the children since the current order was entered.
For example, a material change in circumstances would exist if the child’s primary custodian no longer needs work-related day care.
My child has a disability. Can child support continue after my child is 18?
Yes. In Virginia, a judge may order support to continue for a child in adulthood if the child meets all the following criteria:
- They are severely and permanently disabled (mentally or physically.)
- They are unable to live independently and be self-supporting.
- They reside in the home of the parent seeking support.
If you believe that your child will require support into adulthood because of a disability, you should seek a lawyer’s advice before your child reaches the age of 18 to discuss how to best preserve that right.
How is spousal support calculated?
Whether spousal support is awarded and, if so, the sum and duration of that award are based on the judge’s consideration of evidence under a number of factors. Typically, the income and expenses of each party are key considerations for the judge.
In many counties, guideline formulas are used to determine the sum of spousal support that is appropriate during the temporary phase of the case, i.e., after a party has filed a complaint for divorce and before a final trial has occurred.
What can I do if my spouse refuses to work just to receive more spousal support?
Your attorney can help you retain a vocational rehabilitation expert to evaluate your spouse’s employability and earning capacity. Assuming the expert concludes that jobs are available that your spouse would qualify to hold, the expert will testify that your spouse is voluntarily unemployed and could be earning a certain salary. The judge may then treat your spouse as if they are earning a certain salary for the purpose of determining the amount of spousal support that should be payable.
Can a spousal support order be modified?
It depends. If spousal support was decided by a judge, then either spouse may request an upward or downward modification based upon a material change in circumstances. If spousal support was ordered based on an agreement that the parties reached, then it is subject to modification only if the terms of the agreement permit modification.
If my spouse cheated, can I still be ordered to pay spousal support?
Yes. Although Virginia law prohibits an award of permanent spousal support to a spouse who is guilty of adultery, the judge can award temporary spousal support to a cheating spouse if a denial of spousal support is clearly unjust based on the respective degrees of fault during the marriage and the parties’ economic circumstances.
Adultery is not a bar to temporary spousal support.
Can my child choose where he/she wants to live?
In Virginia, a judge is required to consider 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.
There is no hard and fast rule as to when a child is old enough to testify their preference, but generally, it is around age 13. It is important to keep in mind that a child’s preference is only one factor and will not dictate the entirety of the judge’s decision.
To avoid subjecting a child to the trauma of testifying in court, parents will often consider other options such as working with a professional custody evaluator. A custody evaluator is a mental health professional who works directly with the child and parents to form an expert opinion as to the custodial arrangement that is in the psychological best interests of the child.
My spouse handled all of our finances. How do I find out what we have?
Once a case is filed, your attorney will have the ability to conduct discovery on your behalf, which includes the following:
- Issuing subpoenas to third parties such as financial institutions, for records and account statements
- Issuing requests for your spouse to produce documents
- Issuing written questions about your assets that your spouse must answer in writing and under oath
- Taking depositions of your spouse and others
If financial accounts and other assets are held in your spouse’s name, it is imperative for you to promptly retain an attorney to seek a court order preventing your spouse from wasting or dissipating assets.
Will I be taxed if I transfer a portion of my IRA or 401(k) to my spouse?
If retirement assets are properly transferred to your spouse pursuant to divorce, that transfer does not result in tax consequences to either of you. In order to ensure that the transfer is qualified, you should work with an attorney who can help draft proper provisions for an agreement and any required Qualified Domestic Relations Orders or other retirement division documents.
What is mediation?
Mediation is an opportunity to resolve your differences through compromise outside of the courtroom. There are many types of mediation, but typically, both parties, their counsel and a neutral mediator will participate.
The mediator listens to each party’s position and tries to broker a compromise — usually over the course of many hours. A mediator cannot force either party to settle. If a signed agreement results from mediation, it will often be incorporated into a court order, which means that the terms agreed upon will have the same force and effect as if a judge had presided over a trial and ordered them.
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