Focus areas:
Estate Planning:
- Choose who will inherit what among your possessions and valuables
- Name your children’s guardian in the event of your premature death.
- Reduce taxes on what you leave behind.
- Minimizes the chances of family strife and ugly legal battles.
- Plan for mental disability.
- Plan for medical conditions.
Wills
Trusts – Many to choose from, including:
Marital
Family
Special Needs
Powers of Attorney and Medical Directives
Probate
- Choose who will inherit what among your possessions and valuables
- Name your children’s guardian in the event of your premature death.
- Reduce taxes on what you leave behind.
- Minimizes the chances of family strife and legal battles.
- Plan for mental disability.
- Plan for medical conditions.
Family Law:
The process of filing for divorce can seem daunting. We can prepare you for how the process will go and what to expect.
Filing
You must be a legal resident in Virginia for at least 6 months before filing for divorce. If you have minor children, you must be separated for one year before filing for divorce. Without minor children, you can file for divorce after living separately for 6 months, if both spouses enter into a separation agreement establishing how property will be divided.
Filing for divorce in Virginia generally consists of filing certain forms with your local circuit court. Filing these forms starts the divorce process. After an individual files the divorce forms, their spouse needs to be “served.” This means that the spouse receives copies of the divorce papers filed so they have proper notice of the divorce request, referred to as “service of process.”
Divorce Grounds
Filing for divorce in Virginia requires meeting on of the authorized grounds. The fault grounds authorized in Virginia include: adultery, felony, cruelty, and desertion. Alternatively, a spouse may file for “no-fault divorce” after separation.
- Adultery – In Virginia, adultery constitutes grounds for divorce, but requires corroboration of evidence of one spouse having intimate relations with a party outside the marriage.
- Felony – A spouse can also file for divorce if the other spouse is convicted of a felony after the marriage, which resulted in confinement for at least one year.
- Cruelty – An individual can file for divorce if his or her spouse is guilty of cruelty or caused reasonable apprehension of bodily hurt. Cruelty typically requires conduct that causes bodily harm or fear of bodily harm and makes living together unsafe.
- Desertion – A spouse may also file for divorce if he or she was willfully deserted or abandoned by the other spouse. Desertion requires a spouse to willfully separate from the other spouse without justification with the intent to remain separated permanently.
- Separation – A spouse may file for divorce after being separated and living apart for one year, if the couple has minor children, or 6 months, if the couple doesn’t have minor children and enters into a separation agreement.
Uncontested Divorce
When both spouses agree on all divorce matters, the divorce is “uncontested.” You must agree to file for a “no-fault” divorce, meaning that it’s not either spouse’s fault that the marriage is ending. To file for an uncontested divorce, one spouse must complete and submit specific forms to the court.
Both of you will need to agree on every issue of the divorce. This includes issues regarding property and children. A joint separation agreement will need to be signed by both spouses, which divides up a couple’s assets and responsibilities following the divorce. Additionally, if the couple has minor children, they must also include provisions about visitation, custody, child support, and insurance coverage for the children.
Some uncontested divorces in Virginia will be heard in court, while others can be heard through a deposition or affidavit. You can typically avoid having to go to court if you request to have a hearing by deposition or affidavit and submit additional documents.
Equitable Distribution
Courts will divide property “equitably,” or fairly, between spouses, but not necessarily evenly. Upon divorce, a couple’s property is classified as marital, separate, or part marital and part separate. Marital property is jointly-owned property and other property (other than separate property) obtained from the date of marriage through separation. Marital property is subject to equitable distribution during a divorce proceeding. Separate property is all property acquired by one spouse prior to marriage and property obtained during marriage by inheritance or gift (other than a gift by a spouse). Separate property does not get divided by the court and instead remains with the spouse that acquired it. Courts will also classify and divide any marital debt the same way as marital property. Courts will consider a list of factors to determine how to divide marital assets and debts.
Child Custody and Visitation
In Virginia there is legal custody and physical custody. Physical custody refers to where a child spends the majority of his or her time. Legal custody refers to the right to make important health, education, and welfare decisions for a child.
A parent may have sole custody of a child or share joint custody between both parents. With sole legal custody, one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child. Sole physical custody means one the child resides with the custodial parent. The non-custodial parent may have visitation rights. Joint legal custody means both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child. Joint physical custody means both parents share physical custody of the child, although not necessarily share equally. In Virginia, joint custody is awarded more commonly.
Custody and visitation matters can be settled through negotiation or mediation between the parties. However, if the parents are unable to agree, they may petition the court to decide these issues. Even if the parties enter into an agreement establishing custody, visitation, and child support matters, the court must approve the agreement. If the court is tasked with determining a custody arrangement, discovery may take place, during which the parties may seek answers to questions and request documents. Drug tests and substance abuse evaluations may be required, as well as psychological evaluations of the parties and children.
When making custody or visitation decisions, courts will determine what is in the best interests of the child. The multiple factors for courts to consider when deciding what is in the best interests of the child are listed in the Virginia Code and include: the age and physical and mental condition of the child and each parent; the relationship existing between each parent and each child; the needs of the child; and the reasonable preference of the child.
Child Support
In Virginia, both parents are required to support their children. Since Virginia law assumes the parent with primary custody is already supporting any children, the parent without primary custody is typically required to pay child support to the parent with primary custody. Guidelines used for determining child support obligations are found in the Virginia Code. The guidelines consider the number of children that need support and the parents’ combined monthly gross income, as well as custody arrangements.
- Sole Custody – if one parent has sole custody of all children, the child support owed is based on the proportion of each parent’s income to the combined income.
- Split Custody – if one child lives with one parent and the other child lives with the other parent, the support owed is the difference between the amounts owed by each parent as a noncustodial parent according to respective “sole custody” calculations.
- Shared Custody – if parents share custody of a child, the support owed is based on the percentage of days per year the child is with each parent.
Courts typically follow the guidelines set out in the Virginia Code when determining a child support. However, a parent can request a deviation from the guidelines and ask the court to raise or lower that amount. When making such a determination, the court considers many factors, including:
- Monetary support for other family members or former family members;
- Custody arrangements, including cost of visitation travel;
- Court-ordered payments for maintaining life insurance coverage for the child, education expenses, or other court-ordered direct payments for the benefit of the child;
- Special needs of a child resulting from physical, emotional, or medical condition;
- Standard of living for the child established during the marriage; and
- Earning capacity, obligations, financial resources, and special needs of each parent.
Spousal Support
Courts have discretion when determining whether a spouse should receive support and what amount of support should be awarded. When making these determinations, courts consider many factors, including:
- The obligations, needs, and financial resources of the spouses;
- The standard of living established during the marriage;
- The duration of the marriage;
- The age and physical and mental condition of the spouses;
- The monetary and nonmonetary contributions of each spouse to the well-being of the family;
- The property interests of the spouses and division of property during divorce proceedings; and
- The earning capacity, including the skills, education and training of the spouses.
The court may also consider other factors, including circumstances that contributed to the dissolution of the marriage, such as any instances of adultery or other grounds for divorce. Spouses may also be barred from receiving spousal support (alimony) such as in divorce resulting from adultery.
Separation Agreement
If the spouses are able to agree on divorce related issues, they can enter into a separation agreement. A separation agreement establishes the parties’ rights and obligations regarding marital debts and assets after a divorce. If the couple has children, the separation agreement will likely also address child support and child custody and visitation issues. However, even if the parties agree on issues of child custody, support, and visitation in a separation agreement, the court must approve the agreement to ensure it is in the best interests of the child. The existence of a separation agreement provides the spouses greater control over the disposition of assets rather than letting the court decide. Separation agreements can also cover issues that the court doesn’t have jurisdiction over, such as post-secondary education expenses.
Marital Agreements
Premarital, or prenuptial agreements, are agreements a couple enters into before getting married that become effective once the parties are married. Child custody and support issues will not necessarily prevail. The best interests of the child(ren) will control.
