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The What, How, When, and Why of Spousal Support

2014 November 10 by

What is Spousal Support?

Spousal support is a court-ordered payment from one spouse to the other. The support payment is given to the receiving spouse for their support during the divorce proceeding and after the divorce is granted. The Juvenile and Domestic Relations district court can determine the availability and amount of temporary spousal support requested by the spouse seeking a divorce. Spousal support may also be granted in the circuit court during divorce proceedings.

How is spousal support paid?

Following the court’s grant of a divorce request, the court has discretion to order a spouse to pay spousal support payments. These payments will be either one of the following payment types or a combination of them:

1. Periodic payments for a scheduled period of time;
2. Periodic payments for an undefined period of time; or
3. A lump sum.

After spousal support has been ordered by the court, either spouse may request a modification to the amount or duration of the support order. The original spousal support order may be increased, decreased or terminated by a court order. The court may modify the spousal support order if the spouse requesting the modification can present evidence that there has been a material change in economic circumstances after original spousal support order and that the change justifies a modification to the order. Change in the financial needs of the receiving spouse or the ability of the supporting spouse to pay are examples of valid reasons for modification of spousal support.

When will a court order spousal support?

When determining whether to order spousal support, the court must consider the factors that lead to the divorce. In addition, the Court is required to consider 13 other statutory factors, including :

1. The needs and financial resources of the parties;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. Age, physical and mental condition of the parties;
5. Special circumstances of children which prevent employment;
6. The monetary and non-monetary contributions of the parties to the family;
7. The property interest of the parties;
8. The division of marital property;
9. The earning capacity of the parties;
10. Additional training and education for a spouse to enhance earning ability;
11. The decisions the parties made during the marriage regarding employment, careers, education, and parenting and their effect on present and future earning potential;
12. Whether either party contributed to the education, training, career, or profession of the other; and
13. Such other factors, including tax consequences to each party, as are necessary.

Spousal support will most likely not be granted to a spouse guilty of adultery. Even in the event of adultery, spousal support may still be ordered for the guilty spouse if the court determines that the guilty spouse’s financial and economic status is so unsustainable that the denial of spousal support would be unfair.

Why would a court terminate spousal support?

The death of either spouse or the remarriage of the receiving spouse will terminate the spousal support unless the spouses have agreed to continue to spousal support. Also, if the receiving spouse has been cohabiting with someone in a relationship analogous to marriage for over a year, the court must terminate the spousal support unless there is a spousal support contract. The court can also terminate support if the recipient no longer needs it or the payer no longer has the ability to pay it.

Spousal support is an important issue in divorce proceedings and courts will consider the various factors in order to make the best decision for both spouses.

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Annulment vs. Divorce

2014 November 3 by

The decision to begin divorce proceedings is a life-changing choice that should only be made after careful consultation with your attorney. During this consultation, your attorney should address several issues that will impact your decision. These issues shall include, but are not limited to, annulment and divorce. Though you may be unfamiliar with how to obtain an annulment or divorce, provided below is a simple explanation that is easy to understand.

Annulment

Depending on the circumstances of your marriage, you may be able to legally terminate your marriage by either annulment or divorce. Annulments are rare and only available under very limited circumstances. An annulment is a court-ordered determination that the marriage never existed, i.e. Void or Voidable. A divorce, on the other hand, is a legal termination of a marriage that did exist. An annulment will not be granted on any grounds if the parties had been married for at least two years prior to filing suit for annulment.

Void marriages have no legal effect and, thus, never existed. This type of marriage may result from:

• lack of a proper marriage or ceremony;
• bigamy;
• marriage between blood relatives; or
• underage marriage without required parental consent.

Voidable marriages are valid unless one of the spouses obtains an annulment. Voidable marriages may result from issues such as:

• mental incapacity or infirmity of a spouse;
• fraud or duress;
• natural or incurable impotency existing at the time of marriage contract; or
• spouse’s unknown felony.

In order to receive an annulment in Virginia, you or your spouse must have been a resident of the Commonwealth of Virginia for at least six months before seeking an annulment. Annulment claims must be filed in the circuit court where:

• both spouses last cohabitated in VA;
• the defendant spouse resides if he/she is VA resident; or
• the plaintiff resides.

If you meet the residential and grounds requirement for annulment, you may be able to obtain an annulment in VA.

Divorce from Bed and Board

The first type of divorce is Divorce from Bed and Board. When a court grants this type of divorce, it orders that the spouses’ personal rights and property are legally separate. Any property acquired after this court order will be in the sole possession of the spouse who obtained it. In order to obtain this type of divorce, you must prove one of the following grounds: cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment, or constructive desertion. Desertion by either spouse will meet the requirement for grounds for divorce from bead and board.

Revocation of divorce from bed and board may be acquired at any time from the court that entered the divorce decree. Divorce from bed and board may merge into a divorce from the bonds of matrimony.

Divorce from Bond of Matrimony

Unlike the divorce from bed and board, this type of divorce is a complete legal termination of the marriage. A divorce from the bonds of matrimony may obtained by fault grounds or no-fault grounds. Fault grounds for divorce include:
• adultery;
• either spouse is convicted of a felony after marriage and sentenced to more than a year of confinement;
• cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment.

There are two methods to obtain a no-fault divorce. The first method requires the spouses to live separately and apart, uninterrupted for one year. The second method requires that neither spouse have natural nor adopted children, spouses enter into a separation agreement; live separate and apart, uninterrupted for six months. In Virginia, if both spouses are guilty of fault grounds for divorce, the court may choose to grant a no-fault divorce.

Every client’s decision to begin divorce proceedings is personal and unique. Our experienced attorneys will give you an in-depth consultation based on your unique facts and circumstances.

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What You Need to Know About Legal and Physical Custody of a Child

2014 October 28 by

There are two types of custody which are as follows:

1. Legal custody. This defines who has the authority to make decisions regarding the health, education, and welfare of the child.
2. Physical custody. This defines where the child will physically reside.

Child custody is a difficult topic to discuss given that it typically involves the end of a marriage, the separation of a family unit and heartache for all involved. Deciding who receives legal or physical child custody and how it is shared is an important task for the court to accomplish. Using the same factors outlined above for visitation, the court must determine what type of legal and physical custody to award. There are specific guidelines in place that the court must follow that it make easier to understand the types of custody available and how custody is determined.

What is Joint Legal Custody?

Joint custody means that the both parents share joint legal responsibility for the health and welfare of the child and authority to make decisions that impact the child’s life.

What is Sole Legal Custody?

Sole custody means that one parent or person has the sole responsibility for the health and welfare of the child. This parent has the sole authority to make all of the decisions concerning the child.

What factors determine who has legal and physical custody of a child?

The court is required to consider the same ten factors set out above for visitation to determine legal and physical custody. The court uses these factors to determine which legal and physical custody arrangement is in the best interest of the child.

So the court has made a decision on legal and physical custody and visitation, so what’s next?

If the circumstances of the parents or children change, one or both of the parents may petition the court to modify custody and visitation. The petitioning parent must demonstrate that circumstances have changed and that the child’s best interests will be served by a modification to the previous order.

Child custody cases are extremely difficult for both parents and obtaining an experienced attorney is one way to make the process less complicated for all parties involved.

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Child Visitation Rights: Who Gets Them and Why

2014 October 13 by

Who can get visitation rights to spend time with a minor child?

The Juvenile and Domestic Relations district court determines who is allowed to spend time with a minor child in a manner that is in the best interest of the growth and development of the child. In most cases, the court only considers the rights of the child’s mother and father when determining visitation rights. However, any person with a legitimate interest in the child’s welfare, such as grandparents, stepparents, or relatives, may be granted visitation rights. If a person’s parental rights have been terminated by a court order or they are a relative of a person whose parental rights have been terminated, they are not considered to have a legitimate interest in the child’s welfare.

What factors does the court consider in determination visitation rights?

The primary consideration of the court is the best interest of the child. In order to determine the best interests of the child, the court will consider the following:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between the child and each parent and each parent’s ability to assess and meet the needs of the child;
4. The needs of the child, including important relationships with siblings, peers and family members;
5. The role of each parent has played and will play in the future, in the upbringing of the children;
6. Each parent’s propensity to support the child’s relationship with the other parent;
7. The parent’s ability to maintain a close relationship with the child and to cooperate with the other parent;
8. The reasonable preference of the child, if the court determines that the child is able to make a reasonable choice;
9. Any history of family abuse; or
10. Any other factors that the court determines are necessary.

Can parents determine visitation rights without a court order?

In certain cases, parents may agree to visitation rights without a court order. The court may refer the parents to a mediator who will conduct a dispute resolution session at no cost to the parents. The session will be conducted following guidelines provided by the court.

Child visitation rights are a complicated issue that takes into consideration many factors that affect the health and well-being of a child. Courts take this issue seriously and will apply the above factors in order to decide what visitation arrangement is in the best interest of the child.

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Separate Property Article at Work It, Richmond

2014 April 1 by

Shannon Otto and I recently published an article on the topic of separate property at Work It, Richmond. It begins:

In a divorce, the division of marital assets and debts is known as equitable distribution. One big area of dispute in equitable distribution cases is where one party’s separately owned property increases in value over the marriage and whether the non-owning spouse can make claim to the increase. Historically, the non-owning spouse had the burden of proof to show that the increase in value was marital property. However, David v. David, a very recent decision from the Virginia Supreme Court, shifts the burden of proof away from the non-owning spouse in cases where an increase in the value of separate property is at issue.

Read the full article at Work It, Richmond »

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