Divorce & Family Law

To be sure, divorce can be a terrible thing. It almost always presupposes animosity between two parties and quite often that animosity cannot be tempered or eliminated by legal action. Moreover, the impact of divorce on children can be devastating, particularly when parents allow their animosity for one another to impact how the children are treated. Whether you hire us or another attorney, you should first try to make sure that you have exhausted any chance of salvaging your marriage. Second, you should do everything in your power, particularly if there are children, to resolve the matter without hating or engendering hate from your spouse. Lastly, you should make sure that you do in fact resolve the divorce, support, property, and custody issues fairly for yourself - you will regret a decision to accept significantly less in order to “get out of the marriage.” A competent, experienced attorney can work through the tension and achieve a fair result.

There are two broad categories of divorce in Virginia: fault and no-fault. Fault, under Virginia law, consists of desertion, cruelty, adultery, felony conviction resulting in imprisonment for more than one year, and a number of related themes. On the other side of the coin, a no-fault divorce consists of the parties remaining separate and apart for the required period of time. The required period of time can either be six months or one year depending on whether the parties have children and have entered into a separation agreement.

A separation agreement is a written contract between a husband and wife which resolves any custody, support and property issues between them. For example, a separation agreement might specify custody for the children, provide for child support, specify spousal support to be paid, if any, divide real and personal property, and provide for the payment of debts. The benefit of a separation agreement is that the parties are able to control the outcome and disposition of their marriage in a friendly, amicable, non-traumatic, and economically reasonable manner. It is clearly the best approach if done correctly and fairly.

A court will decide these issues if the parties are unable to agree on them. Custody of children is based up the best interests of the child and is determined by a number of statutory factors, including but not limited to, the relationship existing between each parent and each child, the needs of the child, and the role each parent has played in the upbringing of the child. Virginia has child support guidelines to assist the court in determining how much child support should be paid. The guidelines take into consideration the gross income of each parent and apply that income to arrive at a gross child support figure. Health insurance and child care expenses are then added to determine the final child support figure. Each party then pays their pro-rated portion.

With respect to spousal support, the court takes into account numerous factors including, the need and ability to pay, the duration of the marriage, the age of the parties, and earning capacity. Spousal support is a very unpredictable area of the law and thus generalities are of no benefit. Suffice it to say, spousal support is something that must be discussed with an attorney and the attorney must be given the opportunity to assess the facts of your case.

Virginia is an equitable distribution state. The court will divide property equitably (fairly). The first step in the process is to determine what property is marital property and therefore subject to division and what property is separate property and therefore not subject to division. Generally, separate property is property brought into the marriage and maintained separately, property acquired by inheritance or gift (from a source other than your spouse) which is kept separately, and property acquired during the marriage in exchange for, or from the proceeds of a sale of separate property (provided it is maintained separately). Basically, marital property is anything that is not separate property.