FREQUENTLY ASKED QUESTIONS ABOUT DIVORCE
 & FAMILY LAW and answers

CONTENTS: (See “Updates”, recent developments are added from time to time at the end of each of these categories)

   Parenting
        Custody
           Update: Modification of a decree by "foreign" state
        Visitation
        Child Support
    Alimony or Spousal Support
    Division of Property - Debts
        Update on Division of Marital Property
    Mediation
    Pro Se Divorce
    Grounds for Divorce and Annulment
    Miscellaneous    
         Where to Look for Help using Fairfax County Facilities  

 

Parenting

CUSTODY:

Q: How does custody get decided as between a parent and a third party?

Answer: A parent is the court preferred custodian. A third party has the burden to prove by clear and convincing evidence that the parent or parents are unfit and/or incompetent.

 

Q: How does custody get decided as between parents?

Answer: As between parents the primary issue is how is the welfare of the infant best served. The fact that one parent desperately desires custody carries little or no weight alongside the issue of the best interests of the infant. In theory, there is no preference as between mother and father but, in practice, we see custody going most often to the mother when the age of the infant is less than five years of age. Unless there is a divorce pending, custody will be decided in the General District Court in the county where the child is domiciled. A parent who is in a position to devote full time to care of the infant offspring usually has an advantage over a parent who works full time if other factors are equally balanced.

Q:   What is the terminology for custody?

Answer: Virginia law recognizes four basic categories of custody:

1. Sole custody

2. Joint custody (this specifies the place of "primary residence" of the infant.

3. Shared custody (a primary residence need not be specified)

4. Split custody (specified part time primary residence with each parent)

                  

Q:  Is there a presumption in favor of not changing custody arrangements?

Answer: Virginia law has a preference for maintaining the existing home arrangements of an infant, providing the status quo is not coerced and is bona fide. Example: where a parent used misrepresentation or fraud to cause the infants residence to be with him or her, there would be no preference given.

Q:  What effect does the misconduct of one of the parents have on custody?

Answer: Under the current case law, misconduct of the parent is not considered relevant unless it demonstrates in some way that the infant will be adversely affected. For example there are cases where a one parent has committed adultery after separation, but it was ruled that the circumstances were such as not to impact on the welfare of the infant whose custody was in question. There are lower court rulings that this result will be obtained even if the act is committed in the infant's home, providing that the infants are not aware of it and not specifically affected by it. This case law changed what had been the rule in this Commonwealth not too many years ago.

Q:  What effect does the mental health of one of the parents have on custody?

Answer: The mental health of a parent who seeking a decree of custody is a factor carrying much weight depending on the type of illness and other circumstances. We are aware of one lower court ruling where the mother had been diagnosed with fairly severe schizophrenia, but she was living with the infant's competent maternal grandmother who assisted in caring for the infant. This mother won custody.

Q:  What effect does the preference of the child have on custody?

Answer: There is a substantial conflict of opinion on this question and the case law appears to be in a state of flux. In practice, the answer will rest in large part on the discretion of an individual judge who is in a position to evaluate the situation on a face to face basis. In our opinion, if a child is mentally very normal and a qualified psychologist favors giving some weight to the preference of a child of about seven years of age, the judge might go along. However, this will never be the decisive factor. As a practical matter, a court might feel that if an "infant" is sixteen or seventeen years of age, he or she is going to end up with the parent of choice regardless of the ruling.

Q:  How does custody get decided as between a parent and a third party?

Answer: A third party would have to have a compelling argument to have any hope of prevailing. Of course it helps if the "3rd party" is a close blood relative. Generally, it would take clear and compelling evidence that the parent of the infant is unfit. The bottom line, however, is always the best interests of the child.

Q:  How does custody get decided as between parents?

Answer: The parent whose custody would best serve the interest of the child.  However, the most debated issue over recent years has centered around the age of the child. Many years ago it was almost guaranteed that the mother would obtain custody of an infant of five years and under. Now, with so many mothers in the work force, the "playing field" gets quite even until you get down to infancy. On paper, there is no preference given regardless of the child's age but, in practice, a mother is likely to be preferred over a father where is child, for example, is only a six months old infant.

Another issue has been adulterous conduct by one of the parents. I have commented on this in one of the foregoing questions.

Employment comes into the picture. Where the husband/father has a high paying job and the mother has a low paying job, it is often held that it is better for all parties that the mother have custody as she may be justified in not working and spending her time with the child. I have heard of a case (not necessarily in Virginia) where the situation was reversed where the wife had the lucrative employment. A recent U.S. Supreme Court case held that a mother who had custody was not going to lose it notwithstanding that she was moving from the East to the West Coast. She demonstrated that she was significantly improving her employment status and compensation by the move.
 

Update: Modification of a decree by "foreign" state

Q: If an appropriate court of another state has made a custody
decree, when or how can a Virginia court modify the other state's
order or decree?

Answer: This is the subject of the following Virginia Code Sections: Chap. 7 Uniform Child Custody Jurisdiction Act
§ 20-137. Modification of custody decree of another state. --

    A. If a court of another state has made a custody decree, a court
of this Commonwealth shall not modify that decree unless (1) it
appears to the court of this Commonwealth that the court which
rendered the decree does not now have jurisdiction under
jurisdictional prerequisites substantially in accordance with this
chapter or has declined to assume jurisdiction to modify the decree
and (2) the  court of this Commonwealth has jurisdiction.

    B. If a court of this Commonwealth is authorized under subsection
A and § 20-131 to modify a custody decree of another state it shall
give due consideration to the transcript of the record and other
documents of all previous proceedings submitted to it in accordance
with § 20-145. (1979, c. 229.)

§ 20-126. Grounds for jurisdiction. --

     A. A court of this Commonwealth which is competent to decide
child custody matters has jurisdiction to make a child custody
determination by initial or modification decree if:

    1. This Commonwealth (i) is the home state of the child at the time
 of commencement of the proceeding, or (ii) had been the child's
home state within six months before commencement of the
proceeding and the child is absent from this Commonwealth because
 of his removal or retention by a person claiming his custody or for
other reasons, and a parent or person acting as parent continues
 to live in this Commonwealth; or

     2. It is in the best interest of the child that a court of this
Commonwealth assume jurisdiction because (i) the child and
his parents, or the child and at least one contestant, have a
significant connection with this Commonwealth, and (ii) there is
available in this Commonwealth substantial evidence concerning
the child's present or future care, protection, training, and
personal relationships; or

    3. The child is physically present in this Commonwealth and (i)
 the child has been abandoned, or (ii) it is necessary in an
emergency to protect the child because he has been subjected
 to or threatened with mistreatment or abuse or is otherwise
neglected or dependent; or

    4. (i) It appears no other state would have jurisdiction under
prerequisites substantially in accordance with subdivision 1, 2,
or 3 of this subsection, or another state has declined to exercise
jurisdiction on the ground that this Commonwealth is the more
appropriate forum to determine the custody of the child, and
(ii) it is in the best interest of the child that this court assume
jurisdiction.

    B. Except under paragraphs 3 and 4 of subsection A physical
presence in this Commonwealth of the child, or of the child and
one of the contestants, is not alone sufficient to confer jurisdiction
on a court of this Commonwealth to make a child custody
determination.

     C. Physical presence of the child, while desirable, is not a
prerequisite for jurisdiction to determine his custody.
(1979, c. 229.)

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VISITATION

Q:  How does visitation get set?

Answer: Initially, it usually is the subject of a "pendente lite" (temporary) court order. The judge of the court has a great deal of discretion is setting the terms of visitation.

Q:  Is there such a thing as "standard visitation"? If so, what is it?

Answer: A non custodial parent who is of decent character and not in default of any existing court order will usually get something like every other weekend to have the child with him plus two or three weeks in summer when the school is not in session. That parent, however, may not take the child across state lines without prior consent of the custodial parent and sometimes a order of the court is required.

Q:  Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

Answer: I would not call it "standard". This depends a lot upon how the child came to be in the foreign" state. If there was a compelling and highly justifiable reason for the non custodial parent to be in another state, the court would be sympathetic and the visitation provisions would be fairly generous, as for example, when the non-custodial parent resides in the state of "last marital cohabitation" and the custodial parent has moved. In some other and different circumstances the court would be more restrictive.

Q:  What visitation rights do grandparents have, if any?

Answer: A recent Virginia case has put a further damper on the rights which the Legislature had apparently granted. There is a rather heavy burden upon the grandparent to plead and demonstrate that the child would actually suffer if grandparent visitation was not achieved. If the custodial parent has remarried, it seems to put the custodial parent in an even stronger position vis a vis the grandparent.

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CHILD SUPPORT

Q:  How is child support computed and allocated?

Answer:  The following Sections are part of the Virginia divorce Code.

"§§ 20-107.2. (Where divorce case pending) “Court may decree as to custody and support of minor children"

§§ 20-108.2 Contains the statutory scheme or formulae for setting the monthly installments of child support to be paid by the non-custodial parent. This schedule applies both in the Domestic Courts and the Circuit Courts of Virginia. This means it applies to both divorce and non divorce cases. It is based essentially upon the relative income of the custodial and non custodial parent. It establishes a very strong prima facie measure of the dollar sum of payments. However a number of mitigating factors are listed in the Code as possibly modifying the effect of the schedule. Example: debts and health of one of the parents or health of the child..

*****UPDATE:  July 30, 2003*****
Q:    If a court has ordered child support payments to be made by the non-custodial parent and the custodial parent remarries so that the custodial parent's financial position has improved, is that a basis upon which the court will order that the amount of the child support payment be lowered?

Answer:  Basically, this subject item falls under VA Code Sect.
20-108.1 where factors to be given special consideration are listed.  However, this Section does not provide a direct answer.  But the answer is found in the case of Oriandi v. Ordiadi.  This VA. Court of Appeals opinion, in construing that Section, stated the following:

        "Additionally, the remarriage of mother and the related economic impact of her remarriage may be considered a "material" change in circumstances justifying modification of the agreed amount of child support."

Q:  How do you change child support?

Answer: Once child support has been decreed or has been fixed by a mutual formal agreement and is reasonable on its face, according the general rule it may be modified only by a showing to the Court of relevant circumstances which have changed. In an extreme case, it might be subject to modification merely by showing that the dollar amount is a significant divergence from the amount which would be ascertained by reference to 20-108.2.

Q:  Does child support get deducted from the payer's paycheck? How?

Answer: Under the present Code provisions, every final decree of divorce involving child support must have a provision that every payment will or will not be paid through the Virginia Department Of Social Services. If an existing decree does not provide for payment through that Department, the "creditor" parent may make application to modify the decree in that respect. Per Code 20-79.1, Any order for minor child support must provide for a payroll deduction unless a written consent from the custodial parent has been filed. Apparently, the order for child support which is part of an initial divorce decree which does not include it, may be modified upon motion to create a payroll deduction.

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Alimony or Spousal Support

Q:  When does alimony get paid?

Answer: Until fairly recently, alimony was only granted to an innocent spouse in cases where a divorce was granted from the other spouse on statutory "fault" grounds. Now in some rare cases, the not so innocent spouse has been granted spousal support ("alimony")

According to law currently applied, alimony will not be granted where the spouse seeking it is employed at a salary which will permit her or him to maintain approximately the standard of living enjoyed in the marriage. There may be exceptions where the respective financial resources of the parties are hugely divergent.

Q:  How does the court decide how much?

Answer: To the extent that the paying spouse can afford it, the amount will be that which will enable the receiving spouse to maintain a standard of living which is fairly equal to that enjoyed in the marriage. Some lawyers claim that there is a rule of the thumb which says that the amount of monthly alimony payments to the former spouse are not to exceed one-third of the paying parties monthly income. Recently, the Virginia Code has been amended to permit the court to grant a lump sum either instead of or in addition to monthly payments. However, as a practical matter, the "lump sum" is more likely to be awarded under a court ordered division of property than as "alimony".

Q:  What does it take to change alimony?

Answer: A significant and relevant change in the financial circumstances since the existing order was entered.

Q:  When does alimony stop?

Answer: Generally, it would be upon the death of the paying spouse or upon the marriage of the receiving spouse. Care must be take to distinguish court ordered support from that contained in a mutual formal agreement approved by the court.

Q:  When does alimony get paid?

Answer: It is normally paid monthly beginning on the first day of the first full month subsequent to the decree.

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Division of Property and Debts

Q: What is the general rule of property division (equitable distribution, community property, or legal title)?

Answer: Virginia does not have "community" property as that term is generally understood. We have "equitable distribution", which is kind of a first cousin to the "community property". The Code of Va.: §§ 20-107.3. (Court may decree as to property of the parties) should be consulted. I recommend that you copy the following www site address and paste it on the "go to" window of your server to bring up the full text of that particular Section: (or just click the link)

 http://legis.state.va.us/Laws/CodeofVa.htm

If one had to shorthand the impact of the foregoing Code Section, it means that in Virginia, the Court has a great deal of discretion during a divorce case in respect to property. All property which came into the ownership of one of the parties during the marriage will be deemed "marital" property and subject to "equitable distribution" as defined above in the Code. An exception is made for certain property which is considered "separate". Example: inheritance of one spouse which is kept distinct and not "merged" with non-separate property.

Q:  What effect does the conduct of the parties have on property division?

Answer: The conduct of the parties will effect the division only to the extent that one of the parties has "wasted the marital property". An example is where one party may have lavished money or other property on a paramour or at the race track.

Q: What effect does the conduct of the parties have on property division?

Answer: The conduct and grounds for the divorce will not effect the court's division unless it is demonstrated that the conduct specifically wasted or reduced the "marital" assets of the parties. Example: husband buying diamonds for his "tootsie".

Q:  What effect does the length of the marriage have on property division?

Answer: (see E.(3) in the above Code Section) It will be a factor but it becomes difficult to predict how much weight it will carry vis a vis the other "factors". As a practical matter, the longer the marriage the less likely it is that much of the property will fall into the "separate" category.

Q:  Is there such a thing as separate property? What does it take?

Answer: The primary example of "separate" is property inherited by one of the parties and not merged in any fashion with the "marital property" i.e., kept in a separate bank account, etc. In case of "merger", property becomes "marital".

Q:  Any special rules for the marital home?

Answer: No special rules except that normally each spouse will have an undivided one-half interest by title irrespective of any rights existing by reason of the divorce Code. However, it might get noticed under the above catch-all factor (see Code E.(10) above.

Q:  How do retirement plans get divided?

Answer: There is a provision in the Va. Code for division of a pension plan between the parties. As to whether some or all of the property is "marital" depends on the application of the "equitable distribution" Code Section to the circumstances and in accord with above Va. Code 20-107.3 : "All property including that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, is presumed to be marital property in the absence of satisfactory evidence that it is separate property."

When that is determined in favor of the "non-member" of the plan, the details of the split are covered by a federal Code section dealing with what is called a "Qualified Domestic Relations Order under the Retirement Equity Act of 1984, P.L. 98-397, 26 USC, Sections 401(a)(3) and 414(p) of the Internal Revenue Code, and Section 206 of the Employee Retirement Income Security Act, 29 USC, Section 1056. Divorce lawyers regard this as one of the most complex and challenging areas in all of family law. The division of retirement benefits for the military is governed or affected by the federal code: "Former Spouses Protection Act" .

UPDATE: DEC. 2001:

Re: Personal conduct of parties to a Property (separation) Settlement agreement after the document is signed:

We are frequently asked about the rights of a husband or wife to "date" and socialize with other members of the opposite sex in that situation. The prudent thing is to avoid being observed in any "compromising" situation. Be governed by discretion not passion until a final divorce decree is entered by a court of competent jurisdiction. Just going to a movie with a "date", for example, is no problem if the "date" is otherwise discreet.

On the other side of the coin one might ask: If all the possible issues have been settled by the "Agreement", what incentive is there for either party to charge the other with adultery. One possible answer is pure vindictiveness. There are others also. The charging party may desire to achieve some advantage in the area of child custody and visitation. The latter issue is always relevant, notwithstanding the specific provisions of the "Agreement", until the children all become of legal age.

Another possibility is that the "Agreement" may have a provision that spousal support payments may automatically terminate in the event of the marriage or cohabitation on the part of the party to whom the payments are made. A definition of "cohabitation" would be set forth therein.

Update on Division of Marital Property 

Q.  How much does fault of a husband or wife matter in the Courts decision on the division of marital property?  

Answer:  For quite a while following the adoption by the Virginia Legislature of the Statute pertaining to "Equitable Distribution" (of "marital" assets) the notion prevailed that fault would only matter to the extent that it had a clearly demonstrable effect on the creation of or the derogation of marital assets.  However, subsequent case law began to clarify that fault was indeed a factor in this issue even absent any evidence of a specific economic impact.

The latest Virginia Court of Appeals case shed further light on that Court's leanings in the matter. First this case pointed out that certain of the husband's conduct showed that in non monetary contributions, i.e., intangibles, the wife's positive contributions were far greater and this would affect the property division.
 
However, the greater significance of this new case is the clarification of this Court's position was the emphasis the Appellate Court placed upon the husband's negative non monetary contributions to the marriage. In this respect the court said:

"The record supports the trial Court's finding that husband's actions  constituted" negative non-monetary contributions," and  its consideration of that factor in distributing the marital property. The testimony of wife and E proved a course of conduct by husband of meeting with G after work and staying out late. Such actions prejudiced the well being of the family and dashed any hope that the parties' October, 2000 reconciliation would succeed. During the last five years of the marriage, nearly one-fourth of the time the parties were married, husband came home late and failed to help with family responsibilities. His late-night activities foreclosed contact with his school-age son and required wife to assume most family responsibilities and duties. Wife testified that since the separation and divorce proceedings, the parties' minor son "has had a lot of emotional problems and is currently undergoing counseling'."

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Mediation

Q:  Is mediation mandatory? When?

Answer: In pending divorce litigation it is not automatic but can be ordered in the discretion of the court.

Q:  Who pays for mediation?

Answer: Usually the cost is split evenly between the parties but the court may order otherwise depending on financial circumstances.

Q:  What are the requirements for who can act as mediator?

Answer: There are no mandatory requirements for mediation not ordered by the court.

Where ordered by the court, the mediator must have a current Commonwealth of Virginia certificate of eligibility. A certificate is earned by special training and acting as a co-mediator for experience. A law degree is not required although many, if not most are members of the bar.

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Pro Se Divorce

Q:  How hard is it to file my own divorce?

Answer: If the suit is for an uncontested "no fault" divorce, it is not intellectually challenging but the procedural hurdles and the dotting of i's and crossing of t's usually drive a lay person up the wall. These procedures are watched with extreme inspection by the court in most Virginia counties. No lay person should try this if children are involved.

Q:  What are the papers that need to be filed?