1. Child Custody / Visitation
In a separation and/or divorce, if parents cannot come to an agreement on custody and visitation, the court will decide for them. A custody order must be followed. Courts in Virginia must consider the best interests of the child(ren) when making custody or visitation decisions.
The following factors are taken into consideration when determining custody and visitation rights:
- The age and physical condition of the child
- The age and physical condition of each parent
- The existing relationship between the child and each parent
- The relationship that the child has with siblings, extended family and friends
- The role each parent has played and will play in the future, with respect to care of the child
- The preference of the child, if the court decides that the child understands and is able to make such a decision based on age, experience, and intelligence
- Any abuse or history of abuse
- The willingness of each parent to support contact between the child and the other parent
Types of custody include sole or joint custody. Sole custody means that one parent has legal and physical custody. A parent with legal custody has the right to make all decisions regarding what is best for the child. Joint custody can include joint legal custody, shared physical custody or a combination of the two.
2. Child Support
Child support is ordinarily payable until the child turns 18 or is still in high school at age 18 (and will terminate then at age 19). Unless the child suffers from some permanent mental or physical disability (which might require child support to continue), the court has no further power to order a parent to pay child support. However, parents may come to their own agreement regarding continuing support while the child remains in college or other post high-school education.
Guidelines set forth by Virginia law establish on a case-by-case basis the amount of child support paid in each case. The amounts are determined by calculating each parent’s gross monthly incomes, the child’s health (including dental) insurance premiums and day care expenses.
Divorce is the dissolution of a marriage. In Virginia, there can be either a contested or uncontested divorce. In a contested, the parties are not in agreement as to the terms of the settlement (property, finances, support, child custody and/or visitation). If mediation and settlement fail or are not an option, the Court will decide the issues.
An uncontested is divorce is when both parties are in agreement regarding settlement issues.
When there are children under the age of 18 involved, parties must wait a full 12 months from the date of separation to file for divorce. If there are no children involved or the children have reach majority (over the age of 18), divorces may be obtained six months after the date of separation.
4. Spousal Support
Spousal support is determined by considering the following factors:
- Age of the spouses
- Duration of the marriage
- Income of each spouse
- Standard of living during the marriage
- Earning capacity of each party
The court may find other factors applicable in determining spousal support.
Spousal may be awarded on a permanent basis; meaning there is a monthly amount due with no ending date; a lump sum award; or spousal support for a defined duration.
Unless there is clear agreement to the contrary, the law now provides that spousal support terminates the earlier of (1) the death of the payor; (2) the death of the payee; (3) the remarriage of the payee; or (4) the cohabitation of the payee with a member of the opposite sex for a period of at least one year.
5. Domestic Violence and Protective Orders
Domestic violence in Virginia is considered family abuse, which refers to any act of violence, force or threat that results in bodily injury or fear of bodily injury. When the victim is a family member of the offender, it is considered family abuse or domestic violence.
The court will grant a protective order where one person requires protection from another.
There are three types of protective orders:
- Emergency Protective Order (EPO): An EPO can legally order an abuser to stop abusing you, prohibit the abuser from contacting you, and order the abusive person away from your home.
- Preliminary Protective Order (PPO): A PPO is like an EPO, except you are also entitled to exclusive possession of your home, and/or jointly owned car. Furthermore, the court may grant you temporary custody of your children.
- Final Protective Order (FPO): An FPO contains all the requirements of an EPO and PPO. In addition, the abuser must pay for you and your children to reside in a new home, and the abuser must seek treatment.
6. Property Settlement Agreements
Property Settlement Agreements (PSA) function like a contract for enforcing the division of property obtained during or before marriage. Property may include real estate and personal property (e.g., furniture, gifts, automobiles). A PSA may also include provisions for spousal support (alimony), child custody or child support.
If a PSA cannot be agreed to during divorce proceedings, a trial may become necessary where the court will determine the division of property.
7. Prenuptial Agreement
A Prenuptial Agreement is a private agreement between two people before marriage. It is to settle, in advance, financial matters in the event of divorce. Other matters, in addition to finance, may also be included. There should be full and fair disclosure, each member of the party should have separate counsel, and the agreement should be in place well before the wedding.
Some considerations to be included in the agreement are:
- List all assets, liabilities, income and expectations of gifts and inheritances
- Describe how premarital debts will be paid
- Resolve what happens to your premarital property in reference to appreciation, gains, income, rental, dividends and proceeds of such property – in the event of death or divorce
- Decide who, or if both of you, will own the marital residence and secondary homes in the event of death or divorce
- Specify the status of gifts, inheritances and trusts either spouse receives or benefits from, whether before or after the marriage
- Clarify what will happen to each type of property, whether jointly or individually owned, such as real estate, artwork and jewelry
- Figure out alimony, maintenance, or spousal support, or provide for a waiver or property settlement instead of support (to the extent allowable by law)
- Detail death benefits, stating what you will provide for in your will
- Decide on medical, disability, life or long-term-care insurance coverage