FAQ Family Law
What are the grounds for divorce in Virginia?
No fault with one year separation. The most common grounds for divorce in Virginia are living separate and apart for one year or more. During the period of separation, at least one of the parties must intend for the separation to be permanent, and there can be no cohabitation with your spouse during that time.
No fault with six months separation and a Property Settlement Agreement. If the couple does not have any minor children and they execute a Property Settlement Agreement resolving all issues of support and division of property, then they can file for divorce after only six months separation.
Adultery, cruelty and desertion. If one party is guilty of adultery, cruelty or desertion, then other party can file immediately for divorce, without waiting for a separation period. As a practical matter, this can give the divorce court jurisdiction to award support and make certain orders preserving property, but as a general rule, eventually most couples finish the divorce on no fault grounds.
Other fault grounds. If one of the parties is convicted of a felony and confined in prison for a period of a year of more, this is also grounds for divorce. Other faults may be grounds for annulment, see the FAQ about annulment.
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My spouse and I want to separate. What should we do?
Draw up a Separation Agreement. Some people call a Separation Agreement a Property Settlement Agreement. Yes and no. A Separation Agreement doesn’t have to be more than a simple written agreement signed by both parties, stating that they will live separate and apart by agreement, starting on such-and-such a date. Then, neither party can sue the other on grounds of desertion.
Draw up a Property Settlement Agreement. A Property Settlement Agreement is exactly what it sounds like, but can be more. The parties should memorialize in writing whatever it is that they both agree to, whether it’s the division of motor vehicles, or debts, or exclusive use and possession of the former marital residence. In the ideal world, the couple will agree to a comprehensive settlement of every issue, including support, division of personal property, division of real property, and division of debt, prior to separation, but in the real world this is not always possible. Agree to what you can agree to, and put it in writing, and sign it.
Do I need a lawyer to draw up a Separation Agreement or a Property Settlement Agreement? Probably, but not necessarily. A lawyer will probably think of things you never thought of, and can put things in words that clarify your legal rights. An agreement written by two lawyers, representing their respective clients, is probably the easiest to enforce. But there is no legal obligation to use a lawyer for one of these agreements to be binding in a court of law, just that the agreement be written down and signed by both parties.
For more information, call me, 703-273-6764, or email me, uptonlaw@gmail.com
What should I do if I am a victim of domestic violence?
Dial 911, and get out! You should not remain in a situation where you are at risk. Dial 911, if you can. Or at the very least, get out of the house immediately, and then call the police. There are shelters you can go to.
Call the Virginia Family Violence Hotline. 1-800-838-8238, toll free.
Get a protective order. You can get a Preliminary Protective Order from your county Juvenile and Domestic Relations Court. Most of them are open from 8:00 a.m. to 4:00 p.m. but it’s best to go early because the paperwork takes time to process.
For more information, call me, 703-273-6764, or email me, uptonlaw@gmail.com
How long do I have to live in Virginia before I file for divorce?
Either you or your spouse must be a bona fide resident and domiciliary of the Commonwealth of Virginia for at least six months prior to filing for divorce or annulment. If you live out of state but your spouse lives in Virginia, you are allowed to file in Virginia, and it may be in your best interest to do so.
Nevertheless, even if you or your spouse haven’t been living in Virginia long enough to file for divorce, you can still file for spousal support, child support, and custody in the appropriate county Juvenile and Domestic Relations Court.
If either of you is active duty military, then the following provisions of the Virginia Code apply:
1. If a member of the armed forces of the United States has been stationed or resided in this Commonwealth and has lived for a period of six months or more in this Commonwealth next preceding the commencement of the suit, then such person shall be presumed to be domiciled in and to have been a bona fide resident of this Commonwealth during such period of time.
2. Being stationed or residing in the Commonwealth includes, but is not limited to, a member of the armed forces being stationed or residing upon a ship having its home port in this Commonwealth or at an air, naval or military base located within this Commonwealth over which the United States enjoys exclusive federal jurisdiction.
3. Any member of the armed forces of the United States who (i) at the time the suit is commenced is stationed in any territory or foreign country and (ii) was domiciled in the Commonwealth for the six month period immediately preceding his being stationed in such territory or country, shall be deemed to have been domiciled in and to have been a bona fide resident of the Commonwealth during the six months preceding commencement of a suit for annulment or divorce.
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How can I get an annulment?
The grounds for an annulment in Virginia are as follows:
• The person performing the marriage ceremony did not have a valid licence.
• Bigamy.
• The marriage is between an ancestor and descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption;
• The marriage is between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood.
• In the case of natural or incurable impotency of body existing at the time of entering into the marriage contract (this means complete inability to engage in sexual intercourse, not inability to have children.)
• When, prior to the marriage, either party, without the knowledge of the other, had been convicted of a felony.
• When, at the time of the marriage, the wife, without the knowledge of the husband, was with child by some person other than the husband, or where the husband, without knowledge of the wife, had fathered a child born to a woman other than the wife within ten months after the date of the solemnization of the marriage.
• Where, prior to the marriage, either party had been, without the knowledge of the other, a prostitute, a decree of annulment may be entered upon proof, on complaint of the other party..
• Fraud. This doesn’t mean that the other person dyes their hair, or has breast implants, or lied about their income, or anything minor like that. An example might be where the other party only marries you to get a green card, without your knowledge, never intending to consummate the marriage or live with you.
• Duress. This doesn’t mean that the other person threatened suicide or threatened to report your illegal relatives to Immigration. More like putting a gun to your head and threatening to kill you.
For more information, call me, 703-273-6764, or email me, uptonlaw@gmail.com
How is child support calculated?
In Virginia, the amount of gchild support owed by one parent to the other parent has been set forth in the Virginia Code on a sliding scale based on the incomes of the two parents. This is called “guideline” child support. Included in the computation of guideline child support are allowances for payment of health care coverage and work-related child care costs for the minor child. Also, guideline child support is calculated, not just on the respective incomes of the parents, but also on the number of days (actually overnights) the child spends with each parent.
Calculation of guideline child support is so complicated that most courts, state agencies, and lawyers use special computer programs for this purpose.
Complicating matters even further, the Virginia Code allows the courts to deviate from guideline child support by considering additional factors, as follows:
1. Actual monetary support for other family members or former family members;
2. Custody arrangements including the cost of visitation travel;
3. Imputed income to a party who is voluntarily unemployed or under-employed;
4. Debts of either party arising during the marriage for the benefit of the child;
5. Direct payments ordered by the court for the benefit of the child;
6. Extraordinary capital gains;
7. Special needs of a child resulting from a physical, emotional, or medical condition;
8. Independent financial resources of the child;
9. Standard of living for the child or children established during the marriage;
10. Earning capacity, obligations, financial resources, and special needs of the parents;
11. Whether either parent owns property that earns income or has an income-earning potential;
12. Tax consequences to the parties;
13. A written agreement, stipulation, consent order, or decree between the parties;
14. Such other factors as are necessary to consider the equities.
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Am I eligible for alimony?
Maybe. Here are the factors Virginia courts look at when deciding whether to award alimony (we call it spousal support in Virginia):
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 division of marital property;
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.
For more information, call me, 703-273-6764, or email me, uptonlaw@gmail.com
What if I, or my spouse, are in the military?
If either you, or your spouse, are serving in the military, this adds an additional set of complications to what may already be a complicated situation.
? For purposes of the divorce, where do you reside, and where is your domicile? This matters, not only for purposes of jurisdiction, but also for division of support and division of personal property.
? How will courts treat the peculiarities of military income, including housing allowances and deployment allowances, when calculating support?
? What are the military rules about your personal obligations to your family, including support, and how will they treat allegations of adultery?
? How will a protective order affect your ability to perform your job if you can’t legally possess a weapon?
? How will allegations of adultery, cruelty, and desertion affect your security clearance?
? Division of military retirement benefits is different than civilian retirement.
For more information, call me, 703-273-6764, or email me, uptonlaw@gmail.com
Can men get custody?
Absolutely. Neither parent has any presumption in his or her favor. It all depends on the best interests of the child.
When the children are young, the courts are most likely to award custody to the person who was the primary care-giver. As the child gets older, the court may give more weight to the wishes of the child regarding custody.
Whether or not you are awarded sole custody, or joint custody, the courts will try to make orders that assure minor children of frequent and continuing contact with both parents, and encourage parents to share in the responsibilities of rearing their children.
For more information, call me, 703-273-6764, or email me, uptonlaw@gmail.com
Is there any way for divorce to be amicable?
In the ideal world, yes, it is, and I want to help you accomplish this goal, if that’s what you want and it’s in your best interest.
The first step is deciding whether or not you should separate or divorce. Whether or not you should divorce is a question that only you can answer.
My job, as a lawyer, is to give you enough information that you can make one of the most significant decisions in your life with a reasonable understanding of the pluses and minuses, and the likely consequences.
It is an unfortunate fact of life that some lawyers will litigate every case as if it were a high-profile divorce between two wealthy individuals, until one, or both, of the parties is impoverished by legal fees. I am not one of those lawyers. I am ready, willing, and able to litigate, if it is in your best interest, but I don't try to enrich myself at my client's detriment.
It is also an unfortunate fact of life that some spouses want to use divorce as a way of hurting the other party. I do not believe in this, and will not willingly promote it. However, if your spouse wants to use the divorce process to hurt you, I am on your side, and will use all legal and ethical means to protect your interests.
For more information, call me, 703-273-6764, or email me, uptonlaw@gmail.com |
