A Virginia Citizens’ Guide to Divorce and Custody Law
All of us have been through difficult times in relationships. But nothing is more difficult that dissolving a relationship as intense as a marriage. And when you add children to it, the emotional costs are catastrophic. Although nothing a lawyer can say will make you feel better personally, the guidance a lawyer can give you through the process of divorce and custody will give you the piece of mind that you will get through this and will rebuild your and your children’s piece of mind.
What follows is a simple outline of how divorce and custody works in Virginia. Simply skim through the questions and click on those that interest you.
Divorce in Virginia: An Overview of Current Law
How was divorce law invented?
Law in the US and Virginia come to us through two means; statutory law (laws that have been passed by the Virginia General Assembly, signed by a Governor and appear in the Code of Virginia) and common law (laws that transferred to us from England in the 1600’s).
All statutory law appears in the Virginia Code. So you can easily find it. In fact, it’s now on line!
So if you ever want to know what the law is on divorce and custody, you can look it up yourself. There was no divorce in old England. So there is no common law on divorce.
Nothing in the law is this simple. And I must tell you about another place law is made – the Courts. The way it is supposed to work is that when the Code of Virginia does not exactly dictate how a situation is to be resolved, the Courts of Virginia interpret it. So, in addition to the Code, a lawyer searches the opinions of the Courts to “fill in the gaps.”
In the end, if there is a law that you do not think is fair or working properly, the way to change it is to call your Delegate or Senator and ask them to pursue a bill to change it. If it passes, then the Courts have to follow that new rule, and all the decisions they made concerning the older version of the law are tossed out.
What are different kinds of divorce in Virginia?
There are actually two types of divorce in Virginia. The first is called “bed and board” divorce. The grounds for this type of divorce are either cruelty or desertion . The effect of a bed and board divorce is that the two people will be declared separated and their personal rights and property protected. Though the people are decreed to be legally separated, under bed and board divorce neither person can marry again while the other is alive . Quite frankly, I have never heard of anyone using this method as a permanent arrangement!
The other type of divorce is called “final divorce,” which allows an individual to remarry someone else if he or she so desires. This is the more common type of divorce.
Do you have to have a legal reason to get a Divorce in Virginia?
What kinds of legal reasons does Virginia accept for divorce?
I thought you said that you have to have a legal reason to divorce in Virginia. If that is true, what is an “Un-contested” divorce?
If I get separated from my spouse, what do I do during the time while we are waiting for the divorce to be finalized? I hear this could take 6 months, a year or even more?
If my spouse and I agree on things like child support and dividing our assets, do we need to have apendente lite hearing?
What if we can agree on all the financial stuff, but we can’t agree regarding the children?
If the court awards my spouse custody at the pendente lite hearing, will I lose at the final hearing?
If the pendente lite hearing is not final, why should it impact the final hearing? Isn’t that unfair?
Custody Q & A
What are the rules on custody of my children?
As stated above, the court first decides child custody at the pendente lite hearing based on the rules set forth in the Virginia Code Section §20-103. The final ruling on custody is then made at the final divorce hearing. The court also has the ability to change the custody decision at a later date if there is evidence of a material change in circumstances and which affects the best interest of the child.
What types of custody are there?
Are there different types of legal and physical custody?
If my spouse gets sole custody, does that mean I will never see my children?
Is it possible to have a visitation schedule that lets me see my children very frequently, even if I don’t have actual custody?
What if I don’t want to work with my former spouse because I do not like him or her or want to keep him or her away from the kids?
What if I try to work with my former spouse, but he or she is just plain unreasonable?
If I decide to litigate what standards will the Court use to decide custody?
What gives the Court the right to determine my child’s best interests?
What does the “best interest of the child” really mean?
Best interest of the child means that the court will focus on what is best for the child. Incorporated into this is the premise that kids do best, when appropriate, to have contact with both parents. (We say “when appropriate” because there are sad cases of abuse and neglect that require the court to suspend or even terminate contact of one parent with their own child).
The factors that the court uses to determine custody are the age, physical and mental conditions of the child and of each parent. The court also takes into account the current relationship between the child and each parent and the role that the parent currently plays and will play in the future in the child’s life. The impact on other relationships the child has with siblings, friends and extended family members and each parents’ willingness to support the other parent’s continued interaction with the child are considered. The willingness and demonstrated ability of each parent to maintain a relationship with the child is considered, as is the parent’s willingness and ability to handle any problems that may come up.
If the court determines that the child is old enough and understands what is going on, the preference of the child is considered. Finally the court looks if there is any family history of abuse which is defined by Virginia Code Section §16.1-228. In addition to these factors, the court has the right to use any other factors that are deemed relevant. The judge will let the parents know the basis of the decision either orally or in writing.
Does the Court give favor to a Mother or a Father? I heard that certain judges are biased to one or the other?
Property Q & A
How do we separate our property when we get divorced?
Does the Court ever divide property at the pendente lite hearing?
If I have a good lawyer, can I “take my spouse for every penny” and make sure he or she suffers financially?
What if we agree on how our property is to be separated?
What if we disagree on how our property is to be separated?
How do we decide what our property is worth?
What is separate property?
What is marital property?
What is hybrid property?
What if we disagree over whether the property is separate, marital or hybrid?
More information on property types in in the Virginia Code.
How does the Court separate the Marital and Hybrid property?
After the valuation and classification, the court considers the distribution. Here is where the “equitable” part of equitable distribution comes into play. There are several factors the court considers including the contributions of both people to caring for the family and the property. The court also looks at the marriage including how long the marriage lasted and the contributing factors which led to the divorce. The court looks at both parties including their age, physical and mental condition, debts and liabilities and the reasons for these. It also looks at the tax consequences to each person. In addition, it will look at how and when the marital property was acquired and how liquid that property is. If either spouse used or sold marital property by themselves in preparation for the divorce or separation, the court may take that into consideration as well as any other factors that the court feels are necessary to consider.
Once these decisions are reached, distribution is made by the sale or division of jointly owned property and in the form of monetary awards.
Spousal Support Q & A
I have heard that sometimes a spouse has to pay the other one after a divorce on a monthly basis to meet that spouse needs. Is this common in Virginia?
When does the Court decide spousal support?
Does the Court always award some kind of support?
How does the Court decide whether it should make an award?
If the Court does award support, how much does it award?
Is the Court’s award the final ruling regarding the subject?
If I am getting spousal support, can I remarry?
If I want to keep getting my support payments, can’t I just move in with someone and skip the actual remarriage?
Are there any other occurrences that end spousal support?
Child Support Q & A
How is child support determined?
Does my custody arrangement impact my child support obligation?
What kinds of factors will the Court consider in making additions or subtractions to my child support obligation?
Is there a main factor the Court will consider?
What is “gross income?”
Does gross income include everything?
Why doesn’t the Court look at “secondary employment income?”
Are there any deductions in calculating gross income?
In addition, there are other expenses which can be deducted from gross income. These include reasonable business expenses from incomes from self-employment, a partnership, or a closely held business and one half of any self-employment tax. Some support payments can also be deducted, depending upon the circumstances.
Are there any other costs that influence the amount of child support owed?
What if there are “out of pocket” medical costs—are these part of child support?
Once the total amount of child support is determined who pays what to whom?
To calculate the monthly obligation of each parent, each parent’s contribution to the total monthly combined gross income, also known as the income share, is multiplied by the total monthly child support obligation. This means that if each parent contributes 50% of the income share, then each parent will pay 50% of the total monthly child support obligation. Similarly, if one parent contributes 40% and the other 60% of the income share, then the parents would pay 40% and 60% respectively of the total monthly child support obligation.
You said child support is impacted by custody arrangements—so what are the different types of custody arrangements
Finally, the court may award limited or extensive visitation rights to a non-custodial parent.
What is the child support impact if I have a sole custody arrangement?
What is the child support impact if I have a split custody arrangement?
What is the child support impact if I have a shared or divided custody arrangement?
Usually these arrangements entail one parent having physical custody for more than 90 days in a year. If that is the case, that parent’s custody share can be calculated by using the formula described above and then taking a proportion of that amount equivalent to the number of days the parent has the child dived by the number of days in the year (365).
What is the child support impact if I have an extensive visitation arrangement?
What is the child support impact if I have a limited visitation arrangement?
Why ninety (90) Days—if my visitation is less than ninety (90) days, aren’t I paying twice? That doesn’t seem fair.
Are there any other considerations the Court will make when determining child support?