FAQ

Q: Are there different types of divorces?
A:  Yes. You may file a “Fault” or “No-Fault” Divorce. In a Fault divorce, you allege your spouse is at fault for ending the marriage. Grounds for fault include adultery, cruelty, desertion, sodomy, and buggery. You may file a No-Fault divorce without alleging fault if you have been separated for a period of at least 1 year or 6 months if you have a Property Settlement Agreement and do not have any children under age 18.
Q:  How do we divide our marital assets?
A:  A Separation and Property Settlement Agreement (also known as a Marital Settlement Agreement) is a contract that resolves all issues arising from your marriage, including the division of property and debts, spousal support, custody, child support, etc. If you and your spouse are able to reach an agreement on all issues, you can avoid the necessity of a contested divorce trial in court; your divorce can be finalized simply by filing certain paperwork with the court.
Q:  What is the difference between legal and physical custody?
A: Legal custody is the authority to make decisions on behalf of the child, particularly with regard to the child’s education, health, and general welfare. Physical custody is the authority to have physical care and control of a child on certain designated days/times. Physical custody may be allocated as follows:

  1. Primary physical custody to one parent, with the other parent having visitation, commonly on alternating weekends.
  2. Shared physical custody, meaning that each parent has the child for more than 90 days per year (up to a 50/50 division of time).
  3. Sole physical custody, where one parent has complete authority to have the child and the other parent has no required visitation schedule.
  4. Split physical custody, where each parent has primary physical custody of one or more children.

Q:  What does “Best interests of the child” mean?

A: Virginia Code § 20-124.3. Best interests of the child; visitation says:
In determining best interests of a child for purposes of determining custody or visitation arrangements, the court shall consider the following:

  1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
  2. The age and physical and mental condition of each parent;
  3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
  4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
  5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
  6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
  7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
  8. 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;
  9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
  10. Such other factors as the court deems necessary and proper to the determination.

Q:  Are all prenuptial agreements the same?

A: No. These contracts are very flexible and can be specifically tailored to address your and your spouse’s concerns about your future.

Q:  What is covered in a prenup/prenuptial agreement?

A: The contracts set forth an agreed division of property and debts in the event of a future separation/divorce, address whether one or both of the parties will waive spousal support, and identify and protect any separate property that each spouse may have owned prior to the marriage.

Q:  My husband lives in another state. How will this affect our child custody agreement?
A: International and interstate custody disputes are governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The purpose of the UCCJEA is to set default rules for jurisdiction over custody matters when parents and children reside in more than one state or country.The full text of the UCCJEA can be found here.
Q:  My husband and I are considering a separation or divorce. Can you help me understand my financial options?
A: If you aren’t certain whether you’re ready to pursue a divorce, we can help you understand what your options are, what to expect in the event of a separation/divorce, and what steps you can take to protect yourself while you take the time to make your decision. More information can be found on our Consultations page.
Q:  My husband and I got divorced three years ago. Is it possible to change our custody agreement now?
A: In order to modify custody, a parent must show: 1) that there has been a material change in circumstances since the entry of the last custody order, and 2) that a modification of custody is in the best interests of the child.
Q:  I was offered a great job out of state. Can I take my children with me?
A: This is not an easy task. In order to relocate with a child, a parent must demonstrate that it is in a child’s independent best interests to move to a new state or country; this is a very high burden of proof, as the benefits to the child must outweigh the negative consequences he/she will suffer as a result of being moved away from the other parent, and the relationship with the other parent can be substantially maintained.
Q:  My same-sex partner and I were not married but share children. Can I get custody of them?
A: You may have rights to custody and visitation of minor children that are biologically unrelated to you, regardless of whether you and your partner were ever married. If you have established a parental relationship with the biological children of your partner, the existing laws recognize you as a person with a legitimate interest and can afford you custodial and visitation rights. Marriage does not automatically confer parental rights over the biological child of your spouse.
Q:  My same-sex partner and I never married but bought a house together. How do we go about selling our home?
A: If you and your partner never married, but have lived together in a long-term relationship and acquired property together, you may require legal assistance in dividing your property in the event that your relationship comes to an end. Property that is jointly titled in the names of you and your partner may require a partition by the Court in order for you to be made whole upon the termination of your romantic relationship.
Q:  What financial responsibility do I have for child support if I am not the biological parent?
A: Paternity disputes rely on guidance from the Virginia Code § 20-49.10. Relief from legal determination of paternity that says:
An individual may file a petition for relief and, except as provided herein, the court may set aside a final judgment, court order, administrative order, obligation to pay child support or any legal determination of paternity if a scientifically reliable genetic test performed in accordance with this chapter establishes the exclusion of the individual named as a father in the legal determination.
The court shall appoint a guardian ad litem to represent the interest of the child.
The petitioner shall pay the costs of such test.
A court that sets aside a determination of paternity in accordance with this section shall order completion of a new birth record and may order any other appropriate relief, including setting aside an obligation to pay child support.
No support order may be retroactively modified, but may be modified with respect to any period during which there is a pending petition for relief from a determination of paternity, but only from the date that notice of the petition was served on the nonfiling party.
A court shall not grant relief from determination of paternity if the individual named as father (i) acknowledged paternity knowing he was not the father, (ii) adopted the child, or (iii) knew that the child was conceived through artificial insemination.
Q:  What is Collaborative Divorce?
A: Collaborative divorce is a dispute resolution process by which couples choose to divorce outside the traditional adversarial and court-based litigation model.  You and your spouse agree not to initiate any court proceedings while you work together with your attorneys, and possibly with neutral third-parties such as a financial professional and/or mental health professional, to reach a mutual agreement resolving all issues arising out of your marriage. More information can be found on the websites for the International Academy of Collaborative Professionals (IACP) and the Collaborative Professionals of Northern Virginia (CPNV).
Q:  What does third party visitation rights mean?
A: A person with a “legitimate interest” in having custody or visitation with a minor child may petition the Court for an order granting custodial rights. The court must give due regard to the primacy of the parent-child relationship, but may, upon a showing by clear and convincing evidence that the best interest of the child would be served thereby, award custody or visitation to any other person with a legitimate interest.

Virginia Code § 20-124.1.
“Person with a legitimate interest” shall be broadly construed and includes, but is not limited to, grandparents, step-grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court.
The term shall be broadly construed to accommodate the best interest of the child.
A party with a legitimate interest shall not include any person (i) whose parental rights have been terminated by court order, either voluntarily or involuntarily, (ii) whose interest in the child derives from or through a person whose parental rights have been terminated, either voluntarily or involuntarily, including but not limited to grandparents, stepparents, former stepparents, blood relatives and family members, if the child subsequently has been legally adopted, except where a final order of adoption is entered pursuant to § 63.2-1241, or (iii) who has been convicted of a violation of subsection A of § 18.2-61, § 18.2-63, subsection B of § 18.2-366, or an equivalent offense of another state, the United States, or any foreign jurisdiction, when the child who is the subject of the petition was conceived as a result of such violation.
Q:  My husband and I want a divorce but we don’t want to go to court and pay expensive court fees. What do you recommend?
A: Alternate dispute resolution embodies all methods of resolving divorce disputes outside of the courtroom, and includes mediation, where a neutral third party such as a retired judge assists you and your spouse in finding middle ground, and Collaborative Divorce.
Q:  How does mediation work?
A: You and your spouse may choose to work with a mediator directly, or with your attorneys present. A mediator cannot give you legal advice, so many couples find it helpful to have their attorneys participate in the mediation process in order to ensure they understand their rights as they relate to the divorce process.
Q:  What is a parenting agreement and how does it help during or after divorce?
A: A Parenting Agreement is a tool that can be used to encourage separated or divorced parents to amicably and successfully “co-parent” their children by focusing on encouraging frequent and regular communication between parents that is productive and free of animosity.
These agreements contain more detail and structure than a typical Custody Agreement or Separation Agreement, and both parties must be willing to bind themselves to the many rules and requirements set forth in the agreement.
Q:  How can I change my name back to my maiden name?
A: You have the right to petition the court to change your name at any time, whether you are restoring your maiden name upon your divorce (in which case your name change will be automatically granted), or if you simply dislike your given name. We can also assist you in the event that you wish to change the name of your child or children.
Q:  How much child support will I be entitled or will I have to pay?

A: Child support is determined by statute, and is calculated based on:

  1. Each parent’s gross annual income.
  2. The amount of time each parent has physical custody of the child during the year.
  3. The cost of maintaining health insurance coverage for the child.
  4. The cost of any work-related childcare that either parent requires.

 

“Gross income” means all income from all sources, including income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans' benefits, spousal support, rental income, gifts, prizes or awards.

The Court also has the authority to deviate from the statutory child support calculation upon consideration of the following factors:

  1. Actual monetary support for other family members or former family members;
  2. Arrangements regarding custody of the children, including the cost of visitation travel;
  3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party's employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party's earning potential;
  4. Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party's earning potential;
  5. Debts of either party arising during the marriage for the benefit of the child;
  6. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
  7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
  8. Any special needs of a child resulting from any physical, emotional, or medical condition;
  9. Independent financial resources of the child or children;
  10. Standard of living for the child or children established during the marriage;
  11. Earning capacity, obligations, financial resources, and special needs of each parent;
  12. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;
  13. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;
  14. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
  15. Such other factors as are necessary to consider the equities for the parents and children.
Q:  What is the impact on military or government benefits after a divorce?
A: We have extensive experience working with the Office of Personnel Management (OPM) and Defense Finance and Accounting Services (DFAS) to effectuate former spouses’ agreements to divide military and government retirement benefits, including the election and payment of survivor benefits.
Q:  How is spousal support determined and how much should I expect to receive after my divorce?
A: Spousal support varies greatly based on each couple’s financial situation. In the event that you and your spouse are unable to agree upon whether any spousal support should be paid, and the amount and duration of support, then a judge will have the sole discretion to make an award of spousal support after consideration of the factors set forth below.
Contrary to popular belief, there is no rule that a spouse will receive financial support for a period of time equal to half the length of the marriage. Spousal support may open-ended/indefinite in duration, or for a defined duration.

  1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
  2. The standard of living established during the marriage;
  3. The duration of the marriage;
  4. The age and physical and mental condition of the parties and any special circumstances of the family;
  5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
  6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  7. The property interests of the parties, both real and personal, tangible and intangible;
  8. The provisions made with regard to the marital property under § 20-107.3;
  9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
  10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
  11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
  12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
  13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Q:  I don’t have a will. Is this a problem?
A: It is very important to have an up-to-date Last Will and Testament upon your separation from your spouse, as you remain legally married unless and until a Court enters an order granting you a divorce, and therefore your estranged spouse will retain the right to inherit your entire estate during the duration of your separation. And, it is always advisable to revise your Last Will and Testament upon divorce, to ensure the smoothest possible administration of your estate.
Q:  How does a judge decide how to split up our properties and money?
A: “Equitable distribution” is the authority of the court to distribute marital assets and marital debt between the parties, in the event that the parties are unable to reach a settlement agreement.
“Equitable” means “fair”—i.e., there is no presumption that marital property and debt will be divided equally between the parties.
The Court must consider the following factors before dividing marital property and debt:

  1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
  3. The duration of the marriage;
  4. The ages and physical and mental condition of the parties;
  5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of Code § 20-91 or § 20-95;
  6. How and when specific items of such marital property were acquired;
  7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
  8. The liquid or nonliquid character of all marital property;
  9. The tax consequences to each party;
  10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
  11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

Q:  What is a Health Care Power of Attorney or an Advance Medical Directive?
A: A “Health Care Power of Attorney” gives a third party the authority to make decisions regarding your medical care in the event of your incapacitation. An “Advance Medical Directive” (also called a “Living Will”) instructs your doctors on your medical treatment preferences in the event that you are incapacitated and/or on life support.

Mullett Dove Meacham & Bradley, PLLC is ready to answer all of your questions. A personal consultation will give you the understanding you need to make informed decisions about your future.

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