We understand that divorce and child custody matters can be tumultuous. Even the simplest and most amicable separations may involve marital debt, asset division, support, and if minor children are involved, child custody. Until these issues are resolved, whether by the parties or by a judge at trial, a divorce cannot be finalized. Emotions can run high and complicate matters further. An experienced family law attorney can be a tremendous asset in helping you navigate these problems. Even if it is just explaining your rights, the law, and your options, having an attorney looking out for your best interests can be a great comfort as well as value added.

Divorce / Grounds
There are two types of divorce in Virginia – a no fault divorce based on a physical separation for a minimum length of time; or a fault based divorce stemming from acts like desertion, adultery, cruelty or abuse.

A no fault divorce can be granted after a showing that the parties have lived separate and apart for at least one year. This requisite time can be shortened to six months if there are no minor children and the parties have signed a separation agreement. Most divorce clients prefer this option as it is less acrimonious, simpler, faster and less expensive. In my experience, a no fault divorce can happen in thirty (30) days or less.

A divorce based on fault, such as abandonment, adultery or abuse, will require proof of one or more of these acts. Adultery requires a higher standard of proof (clear and convincing evidence instead of more likely than not). If one of these reasons for divorce is present, a spouse does not have to wait to file for divorce. Additionally, fault grounds may affect spousal support or how marital assets are distributed.

Spousal Support / Discretionary, but there are a few rules
Spousal support is discretionary. In other words, it is up to a judge’s individual determination on whether to award spousal support and for how much. It is supposed to be determined based on the relative needs of the parties, particularly the spouse with less income, assets, and financial means. It is not supposed to be punitive against a party that is at fault. Conversely, fault grounds such as cruelty or adultery may mean a judge is less likely to award spousal support.

Other factors include the length of the marriage, the ages, and earning potential of the parties. If spousal support is awarded to one party, it may be paid in a lump sum, or at fixed intervals. It may also be indefinite or for a fixed amount of time. If set by the parties, it likely will not be modifiable unless the parties agree for it to be. If spousal support is established by a judge, then it can be revisited after a significant life event, otherwise known as a material change in circumstances.

Child custody and visitation / Best interests of the child
For a court and, hopefully for the parents, the most important thing to consider in where a child will spend his or her time is the best interests of that child. The code of Virginia in § 20-124.3 lays out ten factors to be considered by a court when deciding custody and visitation. These factors include the relationships the parents have with the child, the role each parent has played, and who can best tend to the child’s needs. Obviously, the parents know the child and themselves best, and in an ideal world, they can co-parent despite their differences and develop a schedule without the need for court intervention. If they cannot make an arrangement, then the court will set a schedule. A word of perspective: clients often occupy themselves with labels of joint, sole, primary, etc. These labels mean much less than the amount of time they actually spend with the child.

Child custody and visitation are always subject to change if there has been a material change of circumstances surrounding the child custody and visitation.

Child support / Presumptive statutory guidelines
After spousal support and child visitation are established, child support can be determined. Whether a child spends ninety days or more with a parent affects whether the shared guidelines are used. Child support is normally determined by a statutory formula as the formulas are presumptively correct unless a court, or the parties agree, to deviate from them. The statutory amount is based on the parents’ incomes, number of children involved, and certain child related expenses such as daycare and health insurance.

Assets and debts / It depends
For married couples, there are nearly unlimited possibilities of assets and debts. Whether they are considered marital property or separate property is a question of both law and fact. A basic rule is that items acquired during the marriage are considered marital property, and items acquired prior to the marriage are considered separate. However, the exceptions to this rule are numerous. Who an asset or debt belongs to depends on the type of asset or obligation, how it was acquired, when, and maybe even the purpose, or how it was treated or if it changed during the marriage. This requires an individualized analysis.