The most common grounds for divorce in Virginia are 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). At your initial divorce consultation with one of the experienced divorce lawyers at Wexell Milman, we will discuss with you whether you have a ground for divorce, and if you do, the pros and cons of proceeding on a fault ground. If no ground for divorce is currently available, we will discuss other options to advance your case.
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, and where there are no contested custody, support, or property division issues.
The most common basis for a no-fault divorce is where 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, where one spouse has physically moved out of a jointly shared residence; however, with proper proof, a separation may be established while the husband and wife continue to reside separate and apart under the same roof.
If the parties have no minor children and they have a written separation agreement resolving their financial issues, either spouse is eligible to file for a divorce after only six months of separation.
Unlike some states, Virginia Courts do not grant parties a “legal separation.” However, a divorce attorney can negotiate and prepare a written “Separation Agreement” (also called a “Property Settlement Agreement” or “Marital Settlement Agreement”) in order to memorialize the financial and other terms following a separation. Such an agreement may be very simple, stating that the parties have “agreed to separate” and to “live separate and apart” as of a certain date, or it may be very detailed containing a resolution of any number of issues including custody and visitation, child support, spousal support, property and debt division, and so forth.
A written and signed agreement settling your issues is a private contract between two parties; however, it may 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.
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; rather, it refers to a mechanism to effectuate a fair distribution of assets and debts between two separating spouses. While oftentimes the parties agree to divide their assets and debts equally, or the Court will award 50% of the marital assets to each spouse, and order each spouse to pay 50% of the debt, 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 property” to acquire a home or make an investment. Because there are many factors to consider under Virginia law in determining distribution of property and debt pursuant to a divorce, and because these 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 a Virginia divorce attorney who has experience with both simple and complex property and debt division in Virginia.
Property issues may be resolved by agreement between the parties themselves, which is then set forth in a written document. Should the parties be unable to agree on how to divide their assets and debts, the issue will be determined 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 and debts, their classification (“marital”, “separate” or “part marital and part separate”), and how to divide the marital assets and marital debts. Under Virginia law, the Court must follow the factors set forth in Virginia Code Section 20-107.3, in making an equitable distribution of property and debt.
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 may issue a Preliminary Protective Order. The Preliminary Order is good for up to fifteen (15) days, and during that time, the alleged abuser may be ordered out of the house, and ordered to have no contact with the victim.
Within fifteen (15) days from the time you request a Protective Order, the Court normally conducts 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 a family law 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 often required in order to obtain 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.
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 more appropriate custodial parent.
There are a wide variety of physical custody arrangements available to parents. Put another way, every family is different, and there is no single schedule that fits every situation. The options can range from one parent having primary physical custody and the other having a regular visitation schedule (for example, every other weekend), to a shared physical custody situation where the child or children spend an equal amount of time at each home. At Wexelll Milman, our divorce and family law attorneys have a great deal of experience in fashioning appropriate parenting arrangements based on the needs of the particular client, and circumstances of the child or children in Northern Virginia.
Custody or visitation may 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 or visitation 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 and visitation order, and whether the proposed change in custody or visitation is in the best interests of the child.
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 complex area of the law, and consultation with an attorney who has handled these types of cases is recommended.
Relocation cases are among the most challenging 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 first 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. Wexell Milman has handled a number of these cases at both the trial and appellate levels.
Typically, child support is determined 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 Virginia child support guidelines. The amount of custodial time also influences the determination of child support.
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, for an indefinite period. Spousal support is addressed in Code of Virginia Section 20-107.1. The inquiry is fact specific, and it takes into account a number of statutory factors. Often, the most significant factors are the payor’s ability to pay spousal support versus the recipient’s need for spousal support.
Depending on the terms of any written agreement with your spouse or former spouse, spousal 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.
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. In certain circumstances, child support may be payable after a child turns 18 (or 19), for example, by agreement between the parties or in the case of a disabled child. Our office has experience with both situations.
In Virginia, 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 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 jail time until full payment is made, and impose other sanctions.
All initial court orders in Virginia for child support payments 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.
This is one of the most frequently asked questions when people start going through the divorce process. Family law, whether you have a matter involving divorce, child custody, support, or the division of property and debt, can often be very complex. It is important that you be aware of the law and your options in order to make the right decisions. For that reason, it is advisable to consult with an experienced family law attorney to obtain sound legal advice.
Every case is different, and the fees involved may vary greatly from case to case. Wexell Milman’s family law office handles cases on an hourly fee basis, and our rates are consistent with those charged by our peers practicing in Northern Virginia.
We charge a reduced hourly consultation fee for the initial meeting. At this important consultation, you will receive advice from an experienced divorce lawyer who is equipped to answer your questions.
We require a fee advance in all family law cases. The amount of this fee is referred to as a “retainer,” and will be determined during your initial consultation based on our assessment of the complexity and nature of your divorce 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 from our trust (i.e., escrow) account the amount owed to the firm as indicated on your bill. You may be asked to replenish your retainer during the course of our representation as needs dictate. Any money remaining from your retainer will be returned to you at the conclusion of our representation.
Wexell Milman’s office is conveniently located in an office townhouse in the City of Fairfax, one block from the Fairfax County Court Complex (Circuit, General District, and Juvenile Courts), between Chain Bridge Road and University Drive. Our location is especially convenient for our clients with divorce 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, Stafford County, Culpeper County, and the City of Alexandria. There is plenty of free parking in our parking lot and on Armstrong Street.
To schedule an initial consultation with one of our experienced Virginia divorce lawyers, call our Fairfax County law offices directly at 703-385-3858 or contact us online. Evening and Saturday morning appointments are available by request.