Jump to Navigation

Family Law FAQs

Who Gets Custody of Embryos?

The recent innovations in reproductive technology have helped many couples and individuals achieve pregnancies that may have been impossible just a few years ago. As with many innovations, however, rapid scientific advances have brought with them new ethical and legal dilemmas. Twenty years ago, judges and attorneys who were accustomed to dealing with the often challenging issues of child custody may not have guessed that they would soon be faced with potentially even tougher issues involving custody of frozen embryos.

Take the case of a Tacoma, Washington couple who had two embryos formed with donor eggs and the husband's sperm "left over" after a successful birth using a surrogate. The couple had the eggs frozen with the intention that they, too, would someday be implanted in the uterus of a surrogate mother. The couple later divorced, and the judge awarded custody of the frozen embryos to the husband. The husband wanted to place any children born from the embryos for adoption in a two-parent family outside the state of Washington. The wife appealed from the court's ruling, arguing that she wanted to raise any potential children. The egg donor also wanted a say, and sided with the wife.

A Michigan couple faced a similar dilemma. The divorced couple fought over five frozen embryos for years. The former wife wanted to have more children, using the embryos, but the former husband objected and the case went to court. The judge ruled in favor of the husband, stating that the husband had a right to choose not to have more children. In that case, too, the wife appealed.

An Illinois court struggled with a similar problem in another case involving frozen embryos, ordering in late 1999 that they remain frozen until the court could sort out the weighty constitutional questions involved. In that Cook County case, the husband and wife were in the midst of divorce when the husband asked the court to order the wife not to attempt to become pregnant through implanting the embryos they had frozen earlier in their marriage. The court issued the requested order, ruling that custody of the embryos would be decided as a part of the divorce trial.

These cases demonstrate that thorny legal issues may arise when assisted reproductive technology is implemented, further complicating an already stressful situation like divorce. Couples considering assisted reproductive technology are generally only thinking of the potential positive outcomes and fulfilling their dreams of starting a family. Such couples would be well advised, however, to discuss the legal implications of their decisions with their attorneys before the fact, so that if for some reason the marriage does not last,, they will have prepared themselves as well as possible to deal with the legal and ethical challenges presented by their situation. The law does not answer the question of who should have custody over embryos. If the couple has an agreement that settles this question, the court will generally uphold it. However, absent an agreement, courts treatment of embryo custody differs based on the jurisdiction and the situation involved. Due to the uncertainty, it is important to consult with your attorney when choosing to pursue conceiving a child through reproductive scientific advancements.

Copyright © 2008 FindLaw, a Thomson Reuters business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

View Archives

Separation

1. How can I get separated from my spouse?

There is no "legal separation" in Virginia. A person can be separated from their spouse when they start living separate and apart with the intention to be permanently separated and no possibility of reconciliation.

2. What if I want a separation but my spouse does not?

Only one person needs to have the intent to live separate and apart, so you can still be separated and get a divorce even if your spouse does not want to separate.

3. Can I make my spouse leave the house?

Unfortunately, it is difficult to force your spouse to leave the home absent domestic violence. Many courts in Central Virginia will not require a spouse to move even after a divorce has been filed. Talking to an attorney about what to do when you first contemplate separation may be advisable.

4. Can my spouse make me leave the house?

Generally, your spouse cannot make you leave the house because it is considered your marital home. This may be true even if the home is titled in your spouse's name only.

5. What happens to the children until the court decides?

The parties could agree on how to handle custody and visitation before the court decides and have the agreement entered as a consent court order. Or, a party could file for pendente lite relief, which is a temporary order the court enters for custody and visitation until the court makes a final decision. Before the court decides, both parents have equal rights to the physical custody of the child and to make decisions on the child's behalf.

6. How do the bills get paid until the court decides?

The parties could make an agreement on how to divide bills based on the debts of the parties and their income. This agreement could be entered as part of a court order. A party could also file for temporary relief, called pendente lite, which is a temporary order pending the divorce decree. The pendente lite order could order a spouse to pay spousal support, pay any secured or unsecured debts, and other relief. It is important to have a financial plan in place and budget for expenses, however, because a court decision could take a few months.

7. How long does it take to get a court decision?

The length of time it takes to get a divorce varies from county to county, and depends on what the contested issues are and the necessary hearings. Without an agreement, you need to plan that a pendente lite hearing may take at least six weeks to three months to set and a final hearing will occur after the year. An uncontested divorce with all property issues resolved will take the least amount of time to get a divorce decree.

8. Do hearings always take place on the scheduled day?

No, a hearing could be delayed or rescheduled for a number of reasons. It is important to keep that in mind on your court date.

9. Can my spouse and I live separately in the same house and get a judge to hear our case?

Maybe; it is possible to live separately in the same house and still get a divorce.

10. What are the requirements for an in-house separation?

The couple needs to stop all marital activities and establish separate lives. To accomplish this, the parties should start sleeping in separate bedrooms, cease any romantic or sexual intimacy, stop spending nights together, shop for groceries and necessities separately, maintain separate finances, stop wearing wedding rings, stop eating meals together, cease socializing together, do their separate cleaning and laundry, stop gift-giving between spouses, stop attending events together, and make it known to other people that the two of you are maritally separated within the residence, though continue to reside under the same roof.

11. How can I prove when the separation started and that it has been ongoing and continuous?

A third party over the age of 18 who knows the situation will verify when the separation has started and that it has been continuous and uninterrupted. This can be done by deposition, affidavit, or live oral testimony at the hearing.

Back to Top

Custody and Visitation

1. What are the different kinds of custody arrangements in Virginia?

Sole legal custody: Only one parent retains sole authority to make decisions concerning the child. That parent makes all the daily decisions about the child's life and all of the major decisions about the child's well-being, including matters of education, medical care and religious development.

Joint legal custody: Both parents retain joint authority to make decisions concerning the child, even if the child lives primarily with one parent. Legal custody is the right to make all of the daily decisions about your child's life and all of the major decisions about your child's well-being, including matters of education, medical care and religious development.

Sole physical custody: Only one parent has the primary responsibility for the care of the child. The child has only one primary residence.

Shared physical custody: Both parents share physical and custodial care of the child, even if it may not be a 50/50 time split.

Split physical custody: An example of split physical custody is when there is more than one child and each parent obtains full physical custody over a child.

2. What access does a parent have to information about a child if the other parent has sole legal custody?

Unless a court has ordered otherwise, neither parent can be denied access to the child's academic, medical, hospital or other records, regardless of whether a parent has custody of the child.

3. What custody rights do parents have in Virginia before any court orders have been entered?

Parents have equal custody rights in Virginia before any court orders have been entered. A parent can ask for a temporary order resolving child custody, support and visitation matters before a final order is entered. Called a pendente lite order, this can prevent one parent from child snatching.

4. Can a parent kidnap their own child?

Yes, in Virginia, parents can be convicted of kidnapping their child. Parental abduction or kidnapping is when one parent by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes the child with the intent to deprive the child of his or her personal liberty or to withhold or conceal him or her from any person, authority or institution lawfully entitled to his or her charge. An example of parental kidnapping is when a parent takes the child and refuses to return him or her or if one parent removes the child to an unknown location in an attempt to deny visitation or access to the other parent. The crime is more serious if the parent removes the child from Virginia.

5. What standards do Judges in Virginia use to make custody decisions?

The judge will look at what is in the best interests of the child. There is no preference for custody to be with one parent over the other. Some of the factors that the judge will consider are:

  • The age and mental condition of the child.
  • The age and mental condition of each parent.
  • The relationship between each parent and the child.
  • The needs of the child.
  • The best interests of the child.
  • The willingness of each parent to actively support the child's contact with the other parent.
  • The willingness of each parent to keep a close relationship with the child.
  • The willingness of each parent to cooperate and resolve disputes.
  • Any history of family abuse.

6. What visitation rights does a non-custodial parent have in Virginia?

Non-custodial parents almost always have visitation rights. The judge will ensure frequent and regular contact between the non-custodial parent and the child unless it wouldn't be in the child's best interests. Unless the custody order states otherwise, the custodial parent has an obligation to support their child's contact with the other parent.

7. What types of parental visitation are common in Virginia?

There is no standard visitation schedule. The judge will decide visitation based on the factors and what is in the child's best interest, allowing for frequent and continuous contact with both parents. If the parents cannot agree on a visitation schedule, the judge will consider factors such as the employment schedules of the parents, the child's schedule, distance between the parent's houses, and any special needs of the child. Sample visitation schedules are visitation every other weekend and one night per weekday. Another scenario could be one week on with the child, one week off with the other parent. The judge will also address important holidays and school vacations.

8. Under what circumstances will courts in Virginia be likely to limit or deny custody to a parent?

Courts may limit or deny custody to a parent when there is history of alcohol abuse, illegal drug use, prescription drug abuse, adultery and/or living with a person of the opposite sex to whom they are not married, any criminal convictions, founded Child Protective Services (CPS) complaints, civil commitment and/or mental health hospitalizations, and any physical or mental impairments that would affect a parent's ability to care for a child.

9. What does a court usually do when one parent is abusive or is an alcoholic or drug abuser, is of bad character, commits adultery, or is incarcerated?

Typically, the judge will consider these allegations, and, if proven, it may be harmful in that person's custody case. The judge may still order visitation with that parent, depending on the level of harm to the child and what would be in the child's best interests.

10. What is the role of custody and visitation agreements?

If the judge agrees that a custody and visitation agreement is in the best interests of the child, the parents' agreement will be entered as a consent order, giving the agreement the power of a court order. This agreement may be modified at a later time by the court, however, if there has been a material change in circumstances. The parties may also later agree to a new custody and visitation agreement, and that incorporated as a court order.

11. Can custody and visitation orders be changed?

Yes, custody and visitation orders can be changed.

12. What is the criteria for changing custody or visitation orders?

Once a custody and visitation order has been entered by the judge, it can only be changed if there has been a material change in circumstances and a change would be in the best interests of the child. Examples of a material change in circumstances are changes in the child's life such as special educational needs or health needs, remarriage of the parent, relocation, or negative changes in the life of the parent who has custody.

13. Will a court take away visitation from a parent who fails to pay support for a child?

No, child support and visitation rights are separate issues. Even if the non-custodial parent isn't paying child support, the custodial parent must obey the court order for visitation. The court can enforce any of its orders against either parent.

14. Do others such as grandparents or other relatives have any visitation rights?

Grandparents or other relatives could have visitation rights. If both parents object to the visitation of the third party with the child, a court must find by clear and convincing evidence that the denial of the third party visitation would be harmful to the child's welfare.

16. Does the child's preference matter?

The "best interests of the child" factors include 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 specific age that a child can express his or her preference. The judge will exercise discretion in determining whether a child is competent to testify.

17. What happens if a parent wrongfully withholds visitation from the other parent or interferes with custody or visitation rights?

If a parent wrongfully withholds visitation from the other parent in violation of a court order, they are committing a crime. They are also potentially going to be found in civil contempt of court, with a possible jail sentence or fine as punishment. Additionally, it is important to realize that the failure to cooperate in visitation and other matters affecting a child can be a factor in a court's consideration of a change of custody and/or visitation.

18. How can parents who have difficulty in their own relationship with each other communicate about their child(ren)?

Parents can consider attending co-parenting classes together or co-parenting counseling. They can also consider using a program such as Family Wizard to organize their child(ren)'s schedule and records. Parents should remember to keep communication open and be civil and reasonable at all times. Conflict with their ex-partner should not conflict with parenting responsibilities.

19. What if the parent who has custody of the child wants to move out of state?

Once an order for custody has been entered, a party intending to relocate to another state must give the court and other party thirty days' advance written notice of intent to relocate and any intended change of address, unless the court has ordered otherwise. If the other parent objects to the relocation, a court hearing will be held and the court will consider whether the relocation is in the best interests of the child. The court will analyze whether the move is in the child's best interests, not the parent's best interests.

Back to Top

Child Support

1. What right does a custodial parent have in Virginia to child support?

Both parents owe their child a duty of support. This is true even if the parents were never married. A parent who is living with the child but apart from the other parent is entitled to child support from the non-custodial parent for the child.

2. What formula do judges in Virginia use to make child support decisions?

Virginia has adopted Child Support Guidelines. These guidelines are used by the courts to determine how much child support the non-custodial parent should pay to the parent who has sole custody and also how much child support should be paid in a joint custody agreement. The guidelines take into account factors like the parties' gross income, monthly child care costs due to the custodial parent's employment or attendance in an educational or vocational program, the monthly health insurance premium for the child, any extraordinary medical/dental expenses for the child not covered by insurance, and whether a parent supports any other children. It is possible that the judge may deviate from the guidelines.

3. When would a judge deviate from the child support guidelines?

The guideline statutes create a "rebuttable presumption" that the amount of support is the correct amount. The judge may deviate from the guidelines when the amount would be "unjust or inappropriate." The court looks at different factors such as any special needs of the child resulting from any physical, emotional, or medical condition, the standard of living for the child established during the marriage, the earning capacity, obligations, financial resources, and special needs of each parent and other factors that are necessary to consider the equities for the parents and child. The parties may also make an agreement regarding the amount of child support and have the agreement incorporated into a court order.

4. Can income be imputed to a parent who is earning less money than what they could make?

Yes, the court can consider not only the income that the paying parent actually receives, but the earning capacity of each parent as well. If a parent is voluntarily unemployed or under-employed, the court has the power to impute income to that parent to calculate the child support owed. Voluntary underemployment could occur when a parent chooses to earn less income than they were previously earning or could earn. Voluntary unemployment could occur when a parent chooses not to pursue employment when they are able to work.

5. How is spousal support treated in relation to the payment of child support?

Spousal support is counted as part of the gross income for the person receiving the spousal support. The spouse paying the support can deduct the spousal support amount from his or her gross income for the calculation of child support.

6. How can I enforce a child support order?

If the paying parent is not paying the required amount owed from the child support order, a few options are available to the person receiving the child support. That person can file with the Department of Child Support Enforcement ("DCSE") to help with garnishing the non-paying person's wages, withholding money from the non-paying person's unemployment benefits, tax refund or making a claim against that person's property. Information about DCSE may be found here: http://www.dss.virginia.gov/family/dcse/ The receiving parent can also file a Motion to Show Cause, also called a Motion for Contempt, and if the judge finds the paying parent in civil contempt of court, the parent must pay the child support owed or possibly face a jail sentence.

7. Can the amount of child support be modified?

The amount of child support can be modified by the court if one party proves a material change in circumstances. Material changes in circumstances could include the loss or change of employment, the birth of another child, a serious medical condition of the child's, and other circumstances. The parties may also modify the child support amount by agreement and the agreement is incorporated into a court order.

8. If the parties have joint physical custody, does a parent still have to pay child support?

Yes. The amount of child support will depend upon the amount of time each parent spends with the child as well as the parents' incomes and the expense of raising the child. If each parent has physical custody of the children for more than 90 days, the support amount will be based on the shared support guidelines. Under the shared support guidelines, the primary custodian will typically receive less child support than they would under the regular support guidelines. In calculating the 90 days, a "day" means a period of twenty-four hours. A parent could be credited with a half-day where the parent who has the fewer number of overnight periods during the year has an overnight visit with the child, but has physical custody of the child for less than twenty-four hours during the overnight visit.

9. Can the court order health insurance coverage?

The court has the authority to require either parent to name a child in the parent's health insurance coverage if the parent can obtain health insurance coverage through an employer or any form of group health insurance, and the child can be included at a reasonable cost to the parent in that health insurance coverage.

10. When does the payment of child support end?

The child support payments stop when the child turns 18, unless the parties agree otherwise. However, child support payments will continue beyond the age of 18 if the child is still a high school student, not self-supporting, and living in the home of the party seeking or receiving child support until the child turns 19 or graduates from high school, whichever occurs first. Support may also continue for a child over the age of 18 if he or she is severely and permanently mentally or physically disabled, unable to live independently and support himself or herself, and resides in the home of the parent seeking or receiving child support.

11. Can the court order a parent to pay for college expenses?

No, a court in Virginia cannot order a parent to pay for the college expenses of a child. However, the parties may make an agreement that becomes part of a court order which makes it a binding legal obligation.

12. Do child support payments stop if the paying parent files for bankruptcy?

No, child support is not dischargeable in bankruptcy and any amount past due and any future amount is still owed.

13. Does my child support end if I remarry?

No, if a parent remarries, and even if that parent has more children, he or she still must pay child support to the child of the first marriage or to the non-marital child. If a person is receiving child support and remarries, he or she is still entitled to receive child support unless his or her new spouse adopts the child.

14. How is the payment of child support taxed?

A child support obligation is not tax deductible for the paying parent and is not taxable as income to the receiving parent.

15. What happens if the paying parent passes away before the child turns 19 or graduates from high school?

The death of the paying parent will terminate any current duty to support a child.

16. What is considered "income" for the calculation of child support?

The guidelines look to a parent's gross income. Gross income is all income from all sources. Income does not include certain public benefits or other sources such as workers' compensation benefits, unemployment insurance benefits, child support received, rental income, and other types of income. Also, where a parent has a natural or adopted child living in their household or pays child support for a child who is not subject to the current proceeding, the child support paid is deducted from that parent's monthly gross income. However, income does include spousal support received, commissions, bonuses, dividends, social security benefits, educational grants and other such sources. If a person is self-employed, or in a partnership or closely-held business, reasonable business expenses may be deducted.

Back to Top

Spousal Support

1. How is spousal support determined in Virginia?

Spouses can agree on an amount themselves, and include it in their marital settlement agreement. If they can't agree, a judge will determine the amount of spousal support to be paid, if any. In a pendente lite support hearing in Juvenile Court, which is a temporary spousal support order until the final decree of divorce, there is a guideline amount that is the presumptive amount of spousal support in cases where the parties' combined monthly gross income does not exceed $10,000. In other support hearings, the judge analyzes the factors found below to determine whether to award spousal support and what amount.

2. Can I receive spousal support before a final settlement or court date in my case?

Yes. A spouse can file for pendente lite spousal support relief in the juvenile and domestic relations court. This is a temporary spousal support order which will be effective until the final decree of divorce is entered in the circuit court.

3. How does a judge determine the amount of spousal support?

A judge considers many factors and bases the decision on the financial need of one spouse and the ability of the other spouse the pay. In a pendente lite hearing in Juvenile Court, which is a temporary spousal support order until the final decree of divorce, there is a guideline amount that is the presumptive amount of spousal support in cases where the parties' combined monthly gross income does not exceed $10,000. The court may deviate from the presumptive amount for good cause shown, based on any relevant evidence relating to the parties' financial circumstances that indicates the presumptive amount is inappropriate. For ongoing spousal support for an indefinite duration, there is no guideline or formula that a judge uses to calculate spousal support. Instead, the judge examines the factors discussed below. One party's ability to pay and the other party's need is important. Additionally, a judge may reserve the right of a party to receive support in the future. The length of the reservation is presumed to continue for half the length of time between the date of marriage and the date of separation, but the presumption can be rebutted.

4. Can spousal support ever be barred?

Yes, a judge could refuse to award ongoing spousal support for an indefinite duration if the spouse seeking the support is shown to have committed adultery during the marriage, unless there is clear and convincing evidence that a denial would constitute a manifest injustice.

5. What factors constitute a manifest injustice in barring spousal support for a spouse who committed adultery?

Evidence that denial of spousal support based on the receiving spouse's adultery would constitute a manifest injustice could include things like the earning capacity of the recipient being much lower than the payor, the health of the recipient, and other economic factors of the case, the fault of both parties contributing to the dissolution of the marriage, the cause of the divorce, and other factors.

6. What factors go into a spousal support determination?

In determining the nature, amount and duration of an award, the judge will consider the following factors:

  • The obligations, needs and financial resources of the parties.
  • The standard of living established during the marriage.
  • The duration of the marriage.
  • The age and physical and mental condition of the parties and any special circumstances of the family.
  • 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.
  • The contributions, monetary and nonmonetary, of each party to the well-being of the family.
  • The property interests of the parties, both real and personal, tangible and intangible.
  • The provisions made with regard to the marital property.
  • The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity.
  • 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.
  • 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.
  • The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party.
  • Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

7. Can I receive ongoing spousal support for an indefinite duration?

It is possible to receive ongoing spousal support for an indefinite duration. Spousal support isn't necessarily permanent, but can continue indefinitely subject to modification based on a material change of circumstances. Spousal support, whether ordered by the court or agreed to by the spouses, can be paid in a lump sum or in periodic payments. Payments may be for a set number of years or for an unspecified duration. Court-ordered spousal support ends automatically if either spouse dies or if the spouse receiving support remarries, and may end if the recipient is cohabiting with another person in a relationship analogous to marriage.

8. Can the amount of spousal support be changed later?

If the amount of spousal support was in a property settlement agreement based on the parties' agreement, the amount of support cannot be changed unless the agreement allows for a modification. If the judge awards spousal support, the amount can be changed by either party requesting an increase or decrease based on substantially changed circumstances.

9. How is the spousal support award paid out?

The court has the discretion to award spousal support to be paid in periodic payments for a defined or undefined duration, or a lump sum award, or any combination.

10. How is the spousal support order enforced?

The court can enter an income deduction order. The court will order the paying spouse's employer to deduct the appropriate amount from the employee's paycheck and to pay it to the spouse entitled to receive the support. A party can also file a Motion for Show Cause. A hearing will be had and the person not paying the spousal support will have to explain why they have not been paying support. The non-paying party could be found in contempt of court, with the punishment of a jail sentence or fines.

11. How is spousal support taxed?

The person who receives spousal support must declare it as taxable income. The person paying spousal support is entitled to deduct the amount paid from their income for tax purposes. Taxability of spousal support can be waived in an agreement. The tax consequences of spousal support also can be impacted based on when spousal support ends, how it is decreased during the first several years, and other potential reasons. It is important to work with a tax professional to determine tax consequences, if any, of spousal support.

12. What are the types of spousal support?

Temporary support: This support is typically awarded when the parties are separated, but not yet divorced. Rehabilitative support: This support lasts for a specific length of time. This is typically awarded to a spouse who was dependent on the other spouse and needs time to receive education and training to reenter the workforce or find another job. It can also be awarded to a spouse who will delay entry into the workforce to care for the parties' young child(ren).

Ongoing support: This support continues indefinitely, and is typically awarded in long-term marriages. This award can end on the death of either the paying spouse or the spouse receiving the money, remarriage of the spouse receiving the support, or a long-term cohabitation of the receiving spouse with another person in a relationship analogous to marriage.

Spousal support is modifiable based on a material change in circumstances, which change justifies altering the award. Such changes justifying a modification of spousal support could include a party's retirement, new employment, health reasons, or other events.

13. Can the court require a spouse to name the other spouse as beneficiary on their life insurance policy?

A court cannot order a spouse to maintain a life insurance policy owned by that party insuring the life of either party or to require a party to name the other party as a beneficiary of the policy. However, in temporary proceedings a court can require a party to maintain any existing policy owned by that party insuring the life of either party and it has the authority to require a party to name the other party as beneficiary of a life insurance policy, but only for the exclusive use and benefit of the parties' minor child(ren).

Back to Top

Equitable Distribution of Assets and Debts

1. What assets will the court divide in a divorce?

Only marital assets will be equitably divided in a divorce in Virginia.

2. What is the difference between marital, separate and hybrid properties?

Generally, marital property includes assets acquired during the marriage and property titled in both spouses' names, regardless of who paid for it. Examples of marital property are household items purchased during the marriage, bank accounts, funds accumulated into retirement or investment accounts during the marriage, and cars and homes. Generally, separate property is all property acquired before the marriage or after the date of separation and all property acquired by one spouse during the marriage by inheritance or gift from a third party. An investment made prior to the marriage or an inheritance specified to one spouse is generally considered separate property in Virginia. Hybrid property generally includes assets that have generated income if the income can be attributed to the personal efforts of either party, assets that have increased in value due to the personal efforts of either party, and/or is mixed with marital property and cannot be retraced. These are the general rules. However, there are some exceptions depending on the specific circumstances of your case.

3. How is the marital property value determined?

In most circumstances, the property will be valued at fair market value as of the date of the evidentiary hearing or an agreed upon date. However, there may be special circumstances to seek a different valuation date. It is possible that qualified appraisers, accountants, or other professionals may be needed to help determine the value of assets.

4. Who will decide how property is divided?

The divorcing couple may make an agreement called a property settlement agreement that will decide how to divide the assets. Otherwise, the court will determine the value of the property and how to equitably divide the marital property.

5. What factors will the court look at when making a property division decision?

Virginia uses "equitable distribution" to divide marital property. This doesn't necessarily mean each spouse will receive 50% of the marital property. The court will consider

  • The contributions, monetary and nonmonetary, of each party to the well-being of the family.
  • The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties.
  • The duration of the marriage.
  • The ages and physical and mental condition of the parties.
  • The circumstances and factors which contributed to the dissolution of the marriage.
  • How and when specific items of such marital property were acquired.
  • 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.
  • The liquid or nonliquid character of all marital property.
  • The tax consequences to each party.
  • 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
  • Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

6. Can a premarital or prenuptial agreement help protect assets?

Yes, a premarital or prenuptial agreement can help protect assets and prevent them from being equitably distributed in the event of a divorce. The premarital agreement can address real estate, personal property, retirement, or the payment of spousal support, among other things.

7. How will the court divide debt?

The court will also equitably apportion and order the payment of the marital debt existing as of the date of the evidentiary hearing. The court will look at the nature of the debt and not the title of the debt. If the debt was for a marital purpose, the court has the power to equitably apportion the debt even if it is not titled in a spouse's name. The court can order a spouse to pay toward the debt, but can't divide the debt.

8. How is a spouse's retirement or pension plan treated?

A husband or wife is entitled to a portion of their spouse's retirement or pension plan that was earned during the marriage, absent a prenuptial or premarital agreement stating otherwise.

9. What if I think my spouse is hiding assets?

Attorneys use informal and formal discovery processes to gather information from your spouse. Subpoenas can also be issued to gather information directly from third parties, such as your spouse's bank or employer.

Back to Top

Grounds for Divorce

1. What are the types of divorces in Virginia?

Virginia has two types of divorces: divorce from bed and board ("a mensa et thoro") and divorce from the bond of matrimony ("a vinculo matrimonii").

2. What is divorce from bed and board?

Divorce from bed and board is a partial or qualified divorce. The parties are legally separated but are not permitted to remarry or commit adultery. A divorce from bed and board can only be granted on the grounds of cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment. Any person granted a divorce from bed and board may ask the court to "merge" the decree into a divorce from the bond of matrimony after at least one year has passed from the date the parties originally separated.

3. What is a divorce from the bond of matrimony?

Divorce from the bond of matrimony is a final divorce.

4. What are the "fault grounds" to prove to be granted a divorce from the bond of matrimony?

The fault grounds for a divorce from the bond of matrimony are adultery, or for sodomy or buggery committed outside of the marriage, a felony conviction and confinement following the conviction for a period of more than one year, and cruelty, willful desertion or abandonment after one year from the date of such acts. Virginia will also grant a divorce based on separation without cohabitation and without interruption for a defined period of time, as described below.

5. Does Virginia recognize a "no fault" divorce?

A "no fault" divorce from the bond of matrimony may be granted in Virginia after a period of six months of living separate and apart with no cohabitation and without interruption if the parties have no minor children and have signed a separation agreement. If the parties have minor children and an agreement or the parties have not signed a separation agreement, they can get a divorce after one year of living separate and apart without cohabitation and without interruption.

6. Do both spouses have to live in Virginia to get a divorce in Virginia?

Only one spouse must be a resident of Virginia for at least six months prior to filing for divorce. It does not matter if the other spouse lives outside of the Commonwealth. However, if the other spouse lives outside of the Commonwealth and the parties did not live together in Virginia during the marriage, there may be difficulty getting other rights pursuant to a divorce such as property division.

7. Can a marriage be annulled?

An annulment means that the marriage was void. Annulments are granted in very limited circumstances such as fraud, duress or coercion.

Back to Top

Adultery and Its Impact

1. Can I get a divorce in Virginia immediately if my spouse commits adultery?

Yes, there is no waiting period to get a divorce based on your spouse's adultery, but proving adultery requires a higher standard of proof and corroboration from a third party. Eyewitness testimony is not required to prove adultery and circumstantial evidence may be used instead; however, the evidence must be clear and convincing. Examples of types of evidence that can be used are photographs, telephone and texting records, email records if obtained lawfully, hotel/airfare records, and testimony from others.

2. Are there any defenses to an adultery charge?

Yes, if a suit is filed more than five years after the adultery occurred, the spouse is "time barred" from that claim. Also, if a spouse condoned the adultery, committed adultery themself, or encouraged or facilitated the adultery, an adulterer has a defense to the claim.

3. How does adultery influence the award of spousal support?

An adulterous spouse may still receive spousal support depending on the circumstances in the case. The adulterous spouse cannot receive spousal support unless the denial would result in manifest injustice. The judge will consider the relative degrees of fault of the parties and the relative finances of the parties. The adultery cannot be used as punishment when determining the amount and duration of the spousal support award.

4. Does adultery affect equitable distribution?

Adultery may or may not impact the court's decision in the property division. A judge may consider adultery as a factor in equitable distribution and it may affect the property award if the circumstances affected the marital economic partnership or it negatively impacted the well-being of the family or the mental condition of the parties.

5. Does adultery affect child custody and visitation?

Adultery is not its own factor for determining custody and visitation, but it could weigh into the judge's decision based on the other factors. If the affair has impacted the child, the judge may consider it when deciding what would be in the child's best interests.

Back to Top

Courts for Family Law Matters

1. Which court hears my divorce case?

The Circuit Court hears all divorce cases and divides property through equitable distribution. The Juvenile & Domestic Relations Court cannot hear those cases. The Circuit Court has the authority to also decide issues of custody, visitation, and support if they are a part of the divorce. The Circuit Court is the appropriate court to hear an appeal from the Juvenile & Domestic Relations Court. Any appeal of a Circuit Court's domestic relations decision will go to the Virginia Court of Appeals. Even though a party may ultimately want a divorce and equitable distribution in the circuit court, there could be a strategy behind having child custody, child support, and spousal support handled in the Juvenile & Domestic Relations Court.

2. Which county or city Circuit Court does the divorce get filed in?

The person filing for divorce will file a complaint in the county or city where the parties last lived together, or in the county or city where your spouse resides, if your spouse also lives in Virginia. The person filing may also file where he or she resides if the whereabouts of the other spouse are unknown or if the other spouse lives out of state. The parties may also file in any county or city of Virginia if both parties agree to the venue.

3. What about child custody, visitation, child support, and spousal support?

The Juvenile & Domestic Relations Court ("J&DR") hears all matters involving the family, such as custody, visitation, child, support, and spousal support. The J&DR courts are not courts of record. J&DR decisions can be appealed to the Circuit Court. The Circuit Court judge hears the case de novo, meaning that the judge will make a decision as if it were a new case and does not consider anything that happened in the J&DR court. All evidence must be re-presented and new evidence may also be presented.

Back to Top

Protective Orders

1. What are Protective Orders?

Protective Orders are legal documents issued by a judge or magistrate to protect a person from "family abuse" or from an "act of violence, force or threat." Previously, in Virginia, you could only receive a Protective Order if there was a family or household connection or if an arrest warrant was issued for a stalking, assault, or sexual battery charge. Now, Protective Orders can protect people from harassment from strangers, co-workers, dating partners, and from others.

2. What is "family abuse"?

Family abuse is defined as when a family or household member commits any act involving violence, force, or threat that results in bodily injury or places a person in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by a person against such person's family or household member.

3. What is an "act of violence, force or threat"?

An act of violence, force or threat means any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. This could include stalking, forceful detention, criminal sexual assault, and other acts.

4. What types of Protective Orders are there?

There are three types of Protective Orders in Virginia:

Emergency Protective Order: A person can petition for an emergency order with a magistrate, or at a Juvenile & Domestic Relations Court, General District Court or Circuit Court. A law enforcement official may also request that one be given to you. This type of order expires at the end of the third day following issuance or if the third day falls on a day when court is not open, the end of the next day court is in session. The alleged abuser does not take part in the proceedings.

Preliminary Protective Order: A Preliminary Protective Order is similar to an emergency order, but a law enforcement official cannot request this type of order for you. A preliminary protective order is the first step in obtaining a Permanent Protective Order. A person files for a Preliminary Protective Order in the Juvenile & Domestic Relations Court, General District Court, or Circuit Court. Preliminary orders last up to 15 days, unless the court continues the case for longer. The alleged abuser does not take part in the proceedings.

Protective Order: When a victim obtains a preliminary protective order, the court automatically schedules a hearing fifteen days later to determine whether a Protective Order should be issued. A Protective Order may last up to two years. A Protective Order can only be granted after a full court hearing where both the person filing and the alleged abuser have an opportunity to tell their own sides of the story to a judge. A Protective Order can be extended before it expires.

5. How does an Emergency Protective Order help?

An Emergency Protective Order can:

  • Prohibit acts of family abuse, violence, force, threat, or criminal offenses that result in injury to a person or property;
  • Prohibit any contact by the abuser with you or your family or household members that the judge or magistrate believes is necessary to protect your/their safety;
  • Grant you possession of the home that you and the abuser share and exclude (remove) the abuser;
  • Grant possession of a companion animal; and
  • Grant other conditions the judge or magistrate deems necessary to protect the health or safety of the person.

6. How does a Preliminary Protective Order help?

A Preliminary Protective Order can:

  • Prohibit acts of family abuse, violence, force, threat or criminal offenses that result in injury to a person or property;
  • Prohibit any contact by the abuser with you or your family or household members that the judge believes is necessary to protect your/their safety;
  • Grant you possession of the home that you and the abuser share and exclude (remove) the abuser and order that the abuser cannot turn off any necessary utility services to the home (or order him/her to get them turned back on if s/he terminated them);
  • Grant you temporary possession/use of vehicle that you own by yourself or that you jointly own with the abuser;
  • Require that the abuser provide suitable alternative housing for you and any other family or household member (and possibly require the abuser to pay deposits to connect or restore necessary utility services in the alternative housing provided);
  • Grant possession of a companion animal; and
  • Grant other conditions the judge or magistrate deems necessary to protect the health or safety of the person.

7. How does a Protective Order help? A Protective Order can:

  • Prohibit acts of family abuse, violence, force, threat or criminal offenses that result in injury to a person or property;
  • Prohibit any contact by the abuser with you or your family or household members that the judge believes is necessary to protect your/their safety;
  • Grant you possession of the home that you and the abuser share and exclude (remove) the abuser and order that the abuser cannot turn off any necessary utility services to the home (or order him/her to get them turned back on if s/he terminated them);
  • Grant you temporary possession/use of vehicle that you own by yourself or that you jointly own with the abuser;
  • Require that the abuser provide suitable alternative housing for you and any other family or household member (and possibly require the abuser to pay deposits to connect or restore necessary utility services in the alternative housing provided);
  • Grant possession of a companion animal;
  • Order the abuser to participate in treatment, counseling or other programs;
  • Grant you temporary custody of your child(ren) or temporary visitation for any child(ren) you have in common with the abuser;
  • Grant you a temporary child support order for the support of any child(ren) you have with the abuser;
  • Order costs and attorney's fees; and
  • Grant other conditions the judge or magistrate deems necessary to protect the health or safety of the person.

8. How much does it cost to file for a Protective Order?

There is no cost to file for any type of Protective Order.

9. What county or city does a protective order get filed in?

You can file a petition in the county where you live, in the county where the abuser lives, or in the county where the abuse took place. If there is already another protective order in effect that protects you or your family or household member(s), you have the option of filing your petition in that county.

10. When does the Protective Order take effect?

A Protective Order is not effective until the person is "personally served." To be served, a law enforcement officer or court official must give the Protective Order to the person from whom you want protection.

11. What happens if the abuser violates the order?

The first thing someone should do is call the police, even if it is a minor violation. The abuser can be arrested, fined, and even jailed for violating the protective order.

12. What happens if I move away from Virginia?

Is the Protective Order still valid? Federal law requires all states to enforce protective orders issued by other states. Your Virginia Protective Order can be enforced in another state if it meets federal standards.

Back to Top

Premartial Agreements

1. Do I have to have a Premarital Agreement to protect my interests?

No, it is not required to have a Premarital Agreement. However, if the parties do not have an agreement and the marriage ends, Virginia law will determine how to divide marital property and determine other important legal rights.

2. What happens to the agreement if the parties don't marry?

The agreement is only valid upon marriage, so if the parties never marry, the contract was never effective.

3. What types of things may the parties put in the contract?

The parties may make agreements relating to:

  • The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located
  • The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property
  • The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event
  • Spousal support
  • The making of a will, trust, or other arrangement to carry out the provisions of the agreement
  • The ownership rights in and disposition of the death benefit from a life insurance policy
  • The choice of law governing the construction of the agreement; and
  • Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

4. What if the parties already married without a Premarital Agreement?

Virginia allows for married people to make an agreement relating to the same things allowed in a Premarital Agreement. This Postmarital Agreement is effective immediately upon signing.

5. Can the parties amend the Premarital Agreement?

Yes, after marriage, the Premarital Agreement may be amended or revoked only by a written agreement signed by the parties.

6. When is a Premarital Agreement invalid?

A premarital agreement is not enforceable if the person against whom enforcement is sought proves that:

  • That person did not execute the agreement voluntarily or
  • The agreement was unconscionable when it was executed and, before execution of the agreement, that person:
    • was not provided a fair and reasonable disclosure of the property or financial obligations of the other party; and
    • did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

Back to Top

Judicial Settlement Conferences

1. What is a Judicial Settlement Conference?

A Judicial Settlement Conference is an informal meeting with a retired circuit court judge who is trained in mediation and settlement conference skills. The settlement conference judge will facilitate a process where the parties agree on a mutually satisfactory result. The settlement conference judge acts a neutral party and can offer valuable case evaluations, experience, expertise, and settlement assistance, but he or she does not make any binding decisions. The parties may attend a settlement conference in the same room, or the parties may go into separate rooms during the conference.

2. Who pays for the Judicial Settlement Conference?

The Judicial Settlement Conference is at no cost to the parties.

3. Can the court require the parties to attend a Judicial Settlement Conference?

Both attorneys can request for the parties to attend a Judicial Settlement Conference, or the court, in its own discretion, can order the parties to attend a Judicial Settlement Conference.

4. Are the parties required to settle the case?

No, the parties are not required to settle the case. If the issues are not resolved by the conference, the parties will still go forward with a trial on the merits. However, a settlement conference can be beneficial to the parties even if the case doesn't settle.

5. Why would the parties want to attend a Judicial Settlement Conference?

The settlement conference judge can provide an independent assessment of the risks of litigation. The conference can facilitate the settlement of a case that would otherwise be costly to the parties and result in a lengthy divorce process. The settlement conference judge can help narrow the issues, help with brainstorming for settlement, providing thoughts on the ranges for settlement, and helping to identify appropriate grounds for settlement based on the facts of the case.

6. Can the settlement conference judge decide the case?

No, the settlement conference judge has no authority to decide the case. The settlement conference judge is there to assist the parties in assessing their case and possibly reaching settlement.

7. What happens during a Judicial Settlement Conference?

Lawyers and their clients are active participants in the conference, making a good faith effort to resolve the case. The settlement conference judge may use mediation techniques to help the settlement process. Initially, both parties may be given a chance to be heard and then go into separate rooms or may stay together. The settlement conference judge may use a variety of techniques to encourage and shape settlement, including helping to brainstorm settlement options, providing thoughts on settlement ranges, and helping to identify appropriate grounds for settlement based on law or industry practice. The settlement conference judge may meet privately with each side of the case and point out strengths, weaknesses, and potential problems that the party may not have considered regarding their case.

8. Is the Judicial Settlement Conference confidential?

Yes, nothing said during the settlement conference and nothing prepared for the settlement conference is deemed admissible evidence at trial, unless the statement or document is independently admissible. Furthermore, the settlement conference judge maintains confidentiality with respect to the settlement conference proceedings and only reports to the referring court the terms of the agreement, if authorized by the parties, or the fact that no agreement was reached.

Back to Top

Custody Evaluations

1. What is a Child Custody Evaluation?

Custody evaluations provide more information to the court on the child(ren)'s home, home environment, family relationships, and overall situation. One goal of the evaluation is for the professional to consider and report on how custody and visitation scenarios may impact the child(ren). The evaluator is most concerned with each parent's parenting skills and relationship with the child(ren).

2. Who conducts the evaluation?

The evaluation is often conducted by a mental health professional, who is specially trained to evaluate child custody. The professional is a neutral, objective third party and does not advocate for either parent.

3. Is the result binding on the court?

No, the recommendation by the evaluator is a tool to aid the court in making its decision for custody and visitation of the child(ren). The judge may or may not follow the recommendation made by the evaluator.

4. What is the custody evaluation process like?

The custody evaluator will perform an investigation into the parents, the child(ren), the mental health of the parents and the child(ren), each parent's ability to parent, each parent's willingness to co-parent, their willingness to foster a healthy relationship between the child(ren) and the other parent, any history of abuse and other relevant facts. Typically, parents can be expected to be interviewed two or three times and for the child(ren) to be interviewed a few times as well. The custody evaluator may conduct a home visit to each parent's residence to observe the parent with the child(ren). The evaluator may also interview third parties who have witnessed the parent with the child(ren). The evaluator may contact these third parties for interviews, such as teachers, therapists, friends, doctors, etc. and proper release forms may need to be signed. Various records, such as school records and/or medical records, may also need to be provided with the evaluator for review. The evaluator may administer psychological tests to either the parents or child(ren), or both. After a full investigation, the evaluator prepares a report and makes a recommendation to the court.

5. Who pays for the custody evaluation?

Typically the parties are responsible for the costs of the custody evaluation, and the cost may be split 50/50 or by another arrangement.

6. What is the difference between a guardian ad litem and a custody evaluator?

The guardian ad litem is an attorney whose role is to advocate for what is in the child(ren)'s best interest and for the child(ren)'s wishes, if they are of reasonable intelligence, understanding, age and experience to express such a preference. The custody evaluator is not an advocate for anyone, but is there as a neutral party.

Back to Top

Preparing Yourself for Court

1. How does the divorce process get started?

The divorce process is started when one party files a complaint, or request for divorce, in the circuit court. The sheriff or a private party will usually serve your spouse with the complaint, unless your spouse "waives" service by signing a waiver.

2. What happens after I file for divorce?

The other spouse then has twenty-one days to respond to the complaint after they are served with a copy of the complaint. The answer will respond to the allegations and possibly even assert a counterclaim.

3. What can I do before my divorce goes to trial?

You can file for pendente lite relief, which is a temporary way for the court to resolve issues prior to the divorce. A person can ask for temporary spousal support, temporary child custody and visitation, temporary child support, temporary payment of the mortgage, and similar matters in a temporary court order.

4. How do I find out about my spouse's financial information and other information relevant to the case?

Before trial, each party will conduct discovery. This is a way to obtain information from your spouse and third parties. You and your spouse will be asked to produce numerous documents and to answer extensive questions. Various forms of discovery include:

  • Interrogatories: Interrogatories are written questions on a broad range of topics that you or your spouse can be required to answer under oath.
  • Request for Production of Documents: These are written demands for documents and evidence that you or your spouse can be required to respond to by producing the actual documents or evidence. The request can include tax returns, credit card statements, bank statements, emails, and other information.
  • Request to Inspect: Both you and your spouse can require that the other party make property and other items available to be inspected. This can include things like photographing the marital residence, allowing you to inventory certain property, and other things.
  • Requests for Admission: This discovery device requires the other party to either admit or deny in writing that certain facts are true.
  • Depositions: Depositions require the other party and third parties like friends, colleagues, and teachers to answer questions under oath in front of a court reporter.
  • Subpoena Duces Tecum: This form of discovery can require you, your spouse, and/or third parties to turn over relevant documents and other evidence. This can include medical records, therapy records, bank documents, school records, etc.

5. What is a divorce trial like?

The length of the divorce trial is set by a circuit court judge, depending on the nature of the case. The general process is that each lawyer will give an opening statement to the court. This statement is an overview of the issues and outlines the evidence that will be presented at trial. Next, the party who filed for divorce will present the court with testimony of their witnesses and submit their exhibits. The witness will be asked questions by the attorney who called the witness and the other attorney will have the opportunity to cross-examine the witness. Once the first party is finished presenting all of their evidence, the other party has the chance to present their witnesses and exhibits to the court. Sometimes the courts request that the evidence is presented by deposition. After all of the evidence and testimony has been presented, each attorney will give a closing argument to the judge. A closing argument summarizes the evidence and gives the attorney the chance to explain to the judge how the case should be decided.

6. Will my case be heard on time?

It depends. It is possible that several cases are docketed for the same time. This means that your case could be called first, or your case could be called later in the day. It is possible that the case will be delayed. A party should be prepared for the possibility that the judge may not want to hear the case on that day. A number of things could come up and it is important to be prepared.

7. When will the judge make a decision?

In some cases, the judge will rule from the bench and give the decision in person after all of the evidence is presented. In divorce cases with numerous issues to be decided, it is more likely that the judge will need time to reviewing all of the evidence. The judge will either set a return date for all parties to return to court to give the ruling in person or the judge will send an opinion letter detailing the decision.

8. What should I wear to court?

All parties should dress appropriately and show respect to the court. Appropriate dress would be to dress as if you are going on a job interview.

9. How do I know when I am divorced?

Your divorce is not final until the judge has signed a Final Decree of Divorce. This is the final divorce order granting you a divorce from your spouse.

Back to Top

Attorney's Fees

1. Who pays attorney's fees?

Typically, each party is responsible for their own attorney's fees. However, a party may request the court to order the other party to pay their attorney's fees. Whether to award the attorney's fees, and the amount to award, is within the judge's discretion. There are no statutory criteria or guidelines for determining the amount. When deciding whether to award attorney's fees and the amount to award, the judge will consider the fault of either spouse in the divorce; the earning capacity of each spouse; the need for assistance with fees of the spouse requesting the award; the equitable distribution award that was made; how long the case took and whether one party caused any delay; how contentious the case was and whether one party was particularly contentious; the length of the marriage; and the amount of the attorney fees and costs for the party requesting an award.

Back to Top

CONTACT US

Bold labels are required.

Contact Information

I would like to schedule an initial consultation regarding:

disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

News & Upcoming Events Hall & Hall's Elder Law Blog

QUESTIONNAIRES Articles Hall & Hall's Divirce & Custody Blog
Facebook Twitter Linkedin Google Plus

RICHMOND OFFICE 12090 West Broad Street, Suite 200, Richmond, VA 23233