Frequently Asked Questions

GENERAL

Do I need a lawyer?


The law, whether you have a matter involving family law (divorce, custody, etc.), criminal law or some other issue, can often be very complex. It is important that you be aware of all the issues regarding the problem you are having in order to make the right decisions. For that reason, it is generally advisable to at least consult with an experienced attorney and to get good, sound legal advice.

What legal fees and costs can I expect?

Every case is different and the fees involved may vary greatly from case to case. Our office handles most cases on an hourly fee basis, and our rates are consistent with those charged by other attorneys practicing in Northern Virginia.

We require a fee advance in all domestic relations cases. The amount of this fee is referred to as a "retainer," and it will be determined by an attorney during your initial consultation depending on our assessment of the complexity and nature of your case.

Your retainer payment is deposited into a trust account with our firm, and each month you will receive a detailed bill indicating the work we have done on your behalf. We withdraw the amount owed to the firm as indicated on your bill from our trust account. You may be asked to replenish your "retainer" during the course of our representation as needs dictate. Any money left from your retainer will be returned to you at the conclusion of our representation.

Where are you located?

Our office is conveniently located in a newly renovated office townhouse one block from the Fairfax County Court Complex (Circuit, General District and JDR Courts) on Armstrong Street, between Chain Bridge Road and University Drive in the City of Fairfax. Our location is especially convenient for our clients with cases in Fairfax County, and allows us easy access to the Court to attend hearings and to file documents. Our location in Fairfax City also permits us to handle cases in neighboring jurisdictions, including Loudoun County, Arlington County, Prince William County, Fauquier County, and the City of Alexandria.

General | Divorce | Custody | Support

DIVORCE

What grounds for divorce are recognized in Virginia?


The most common are for adultery, cruelty, desertion, constructive desertion, or when the parties have lived separate and apart for a statutorily mandated period of time. (See, "no-fault divorce" below)

What is a no-fault divorce? How can I get one?

In Virginia, a no-fault divorce is just that, where neither party is claiming that the other spouse was at fault in bringing about the dissolution of the marriage.

The most common basis for a no-fault divorce is that the parties have lived separate and apart for at least one year, without interruption and without resumption of their marital cohabitation. Typically, the Court requires a physical separation between the parties, that is, that one party has physically moved out of a jointly shared residence, however, with proper proof, a separation may be established while the couple continues to reside separate and apart under the same roof.

If the parties have no minor children and they have a written separation agreement, they are eligible to apply for a divorce under Virginia law after only six months separation.

Can the Court give me a legal separation from my spouse?

Unlike some states, Virginia Courts do not grant parties a "legal separation." However, an attorney can negotiate and prepare a "Separation Agreement" (often called a "Property Settlement Agreement") in order to memorialize the terms of a mutually agreed upon separation. Such an agreement can be very simple, stating that the parties have "agreed to separate" and to "live separate and apart" as of a certain date, or it can be very detailed containing a final resolution of any number of issues including custody and visitation, child support, spousal support, property and debt division, and so forth.

A Settlement Agreement is a "private contract" between two parties; however, it can also be incorporated into a court order, either prior to the entry of a final order of divorce or incorporated into the final order itself. When incorporated, the agreement is fully enforceable by the Court through its contempt powers should a party not be in compliance with its terms.

How are property issues handled?

Under Virginia law, the property distribution and debt allocation scheme used to classify, value, and divide assets is called "equitable distribution." "Equitable Distribution" does not necessarily mean "equal" or "50/50" distribution, but rather it refers to a mechanism to effectuate a fair distribution of assets between two separating spouses. While oftentimes the parties agree to divide their assets equally, or the court will award 50% of the marital assets to each spouse, that is not always the case. In certain circumstances one party will be entitled to more of the assets than the other, for example where one spouse has contributed his or her "separate funds" to acquire a home or make an investment. Because there are many factors under Virginia law to consider in determining distribution of property pursuant to a divorce, and because property issues may involve very valuable assets such as the family home, investments, or retirement/pension benefits, it is crucial that those issues be analyzed in a thorough manner by an attorney who is experienced in doing so.

Property issues may be resolved by agreement between the parties themselves, which is set forth in a written document. Should the parties not be able to agree on how to divide their assets, the matter may be heard by the Court at an Equitable Distribution Hearing.

At that hearing, the judge will hear evidence from each side, and will make a final ruling regarding the value of the parties' assets, about their classification ("marital", "separate" or "part marital and part separate") and will decide what each party is to receive. Under Virginia law, the Court must follow the factors set forth in the Virginia Code, Section 20-107.3, in making an equitable distribution of property.

What if my spouse (or boyfriend/girlfriend) is abusive to me?

You may be eligible to obtain a Protective Order from the Juvenile and Domestic Relations District Court. Upon sworn application for a Protective Order, made at the Intake Office of the Juvenile and Domestic Relations Court in the county or city where you live, the Court will issue a Preliminary Protective Order. The Preliminary Order is good for up to fifteen (15) days and during that time the alleged abuser is ordered out of the house and ordered to have no contact with the victim.

Within fifteen days from the time you request a Protective Order, the Court will conduct a hearing to determine whether there are grounds to issue a Permanent Protective Order, which can last up to two (2) years. At the hearing the judge will consider whether "family abuse" has occurred and whether such an order is necessary to protect the well being of any family members alleged to have been abused. At the conclusion of the hearing, the judge will determine whether to issue a Permanent Protective Order, and, if so, on what terms. You may have an attorney represent you at the hearing.

In certain circumstances, and in connection with the filing of a divorce, the Circuit Court has the authority to order that one party have "exclusive use" of the family home. Like a protective order, a hearing before a judge is required in order to seek exclusive use. Factors the judge will consider are whether there has been family abuse and whether the spouse seeking exclusive use has a reasonable apprehension of future physical or emotional harm from his or her spouse. Typically, Circuit Court Judges are hesitant to order one spouse to leave the family home unless the circumstances are very serious.

General | Divorce | Custody | Support

CUSTODY

How does the court determine custody?


Under the Code of Virginia and the case law interpreting it, custody is always determined based upon the best interests of the child or children. The Court must consider ten (10) specific factors contained in Code of Virginia Section 20-124.3 in determining custody. It is a very fact-driven inquiry. Under Virginia law there is no presumption as to whether a mother or a father is the most appropriate custodial parent

Can custody or visitation ever be changed?

Yes, custody or visitation can be modified by an agreement between the parties, or by the Court where the parties have not reached an agreement and one of the parents seeks to modify a prior order. In order to change custody under Virginia law, the court must first determine whether there has been a material change in circumstance since the entry of the court's most recent custody order, and whether the proposed change in custody is in the best interests of the child.

I'm a grandparent. Can the Court award me visitation with my grandchildren?

In certain circumstances, yes, although Virginia law recognizes the primacy of parents with respect to making decisions concerning their children. However, the Code of Virginia also permits the court to award custody or visitation to any person with a "legitimate interest." As that term is used, "person with a legitimate interest" includes (but is not limited to) grandparents, stepparents, former stepparents, blood relatives and family members. Virginia Code Section 20-124.2(B). This is a very difficult area of the law, and consultation with an attorney who has handled these types of cases is recommended.

My former spouse told me she is planning to relocate out of state with our children. What can I do?

"Relocation cases" are among the most difficult of all custody matters. In order for a child to be relocated against the wishes of the parent not relocating, the parent seeking permission to relocate must show that the other parent's relationship with the child can still be substantially maintained and that it is in the child's best interests to relocate. Our office has handled a number of these cases at both the trial and appellate levels.

General | Divorce | Custody | Support

SUPPORT

How is child support calculated?


Pursuant to the Child Support Guidelines contained in Code of Virginia Section 20-108.2, which take into account each parent's income, and any expenses for work related child care and health insurance coverage for the child. However, upon good cause shown, in the exceptional case, the trial court may deviate either upward or downward from the state-wide child-support guidelines.

Am I eligible to receive spousal support from my spouse? Must I pay spousal support to my spouse?

Under Virginia Law one spouse may be required to pay spousal support (sometimes called "alimony") to the other, whether on a temporary basis, for a fixed period, or permanently. Spousal support is addressed in Code of Virginia Section 20-107.1. Again, the inquiry is fact specific and it takes into account a number of factors. Often, the most significant factors are the payor's ability to pay spousal support versus the recipient's need for spousal support.

Can child or spousal support be modified?

Generally, support may be modified based upon a material change in circumstances justifying a modification. For example, a party's increase in income may be grounds for an increase in support or a party's involuntary loss of employment may be grounds to seek a decrease. Because this is a very fact specific inquiry, it is best to consult with an attorney. (It is rarely, if ever, appropriate for a party to "self-modify" his or her court ordered support payments)

For how long is child support payable?

Under Virginia law, child support is paid until a child reaches the age of 18 years, marries, dies, or otherwise becomes emancipated. However, child support shall continue to be paid for a child over the age of eighteen who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of nineteen or graduates from high school, whichever first occurs.

My spouse isn't paying me the support that was ordered by the Court. What can I do?

A party who is obliged to pay child support or spousal support under an order of the court must continue to do so unless and until the court changes or terminates that obligation. If a party is not paying support, the court can use its contempt powers to punish the party who is not paying the support and to order that the arrearage (past due support) be paid.

The party entitled to receive the support files a pleading containing a sworn statement regarding the non-payment, and the Court issues a "Rule to Show Cause" summoning the party alleged to be in violation of the court order to appear in court and explain his or her reasons for non-payment. Absent a very compelling reason, the non-paying party will almost always be ordered to make payment, and the judge may impose actual or suspended jail time until full payment is made, and impose other sanctions.

Can child support payments be taken out of my spouse's wages and paid directly to me?

All initial court orders for child support payments in Virginia must state that payments be made by payroll withholding orders directed to the employer, unless the parties specifically agree to direct payments. Wage withholding is through the Department of Child Support Enforcement. If a party is currently making direct payments of support, but is failing to do so in full, or in a timely manner, the Court may order wage withholding if good cause is shown.

General | Divorce | Custody | Support