There are three things that may figure into any divorce: 

(1) Child Custody and Support;

(2) Spousal Support (alimony); and

(3) The equitable distribution of marital property.

CHILD CUSTODY:  The Court will consider a number of factors before awarding custody and it is not automatic that one or the other parent will win custody. Who caused the divorce will not necessarily matter.  Custody is to be awarded based upon the best interests of the child.  .  

Typically the non-custodial parent will get visitation rights and will have to pay child support based upon support guidelines published in the Virginia Code.  Frequent visitation is encouraged. And no one is “punished” or “rewarded” with the support amounts.  For tax purposes child support is not income if you receive it and not deductible if you pay it.

SPOUSAL SUPPORT was originally intended for the wife who stayed home with children or followed her husband while he was pursuing a career.  When a divorce put her back in the job market at entry level wages, support was intend to help bridge the gap between what she makes and what she could have made if she had pursued a career.  Today, support can be awarded to either spouse and is based upon a number of factors that the Judge must consider.

To get spousal support you should need it, and not be at fault. 

You probably will not get support if: 

 – You caused the divorce,

 – You were married only a short period, or

 – You make more than your spouse or have the same employment skills.

Periodic support ends when the recipient dies, or remarries or after a period of time fixed by the Court.  Sometimes a single lump sum is awarded as spousal support.

EQUITABLE DISTRIBUTION is the division of all “marital” property acquired during the marriage or used by both of you while married.

To avoid being classified as “marital” the property must have (1) Been yours before the marriage or acquired by you during the marriage by gift or inheritance AND  (2) Kept completely separate and apart from your spouse in name and use.  Otherwise it is marital or part marital.

SETTLEMENTS: If the two of you work out your differences the lawyer can put together a property settlement agreement and the matter becomes “no-fault” (uncontested) and final once the appropriate time period has passed.  Whatever you do not agree on must be decided by the Court.

CONTESTED DIVORCES

Anything the two of you do not agree upon is contested and must be decided by the Court.  The process could be heard by a Juvenile Court Judge if it involves custody or support.  Or a matter could be heard in the Circuit Court by a Circuit Court Judge, a Commissioner in Chancery or a Judge Pro Tem.

If you do not contest custody but do contest child support the matter is typically computed by checking what the statute says.

If custody is disputed the Judge must make a decision based upon what is in the best interests of the children.  That may involve appointing a lawyer as a guardian ad litem to look out for the children’s interest.  But the Judge does not just go by instinct. There are a number of factors listed in the Code that the Judge considers in making the decision.

Equitable distribution of marital property is another contested area.  The Court has to list all the property, determine how it was acquired, whose name is it in, how much is it worth and what is the best way to distribute it considering a number of factors listed in the Code, like the relative contributions of the two of you and the possible tax effects.   Sometimes appraisers have to be called in to value the property.

Spousal support cannot be finalized until after an equitable distribution of property and it requires that the Court consider a number of factors such as age, physical and mental condition of the parties, etc. before ruling.

Grounds of divorce may also be contested.  Most divorces are now granted based upon the separation of the parties but if spousal support or custody are in question then the parties often fight about the grounds as well.

Proof of cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment will get you a divorce from bed and board – that will result in a Court endorsed separation with perhaps a division of property but you will not be able to marry any one else until you have been separated for one year.  

Immediate divorce can be granted upon proof of adultery, sodomy or buggery committed outside the marriage; or where either party subsequent to the marriage has been convicted of a felony, sentenced to more than one year and confined; or after separation of the parties for at least one year (six months if there are no children and the parties have signed a property settlement agreement).  

CHILD CUSTODY AND VISITATION

Child custody is always subject to review by the Courts. Even if the parties agree who should have custody (a decision that the Courts will seldom second guess) that agreement may be reviewed by the Court any time there is a material change in circumstances.

Custody is awarded based upon what is in the best interests of the children. Not to the parent that is innocent in the divorce and not to the one who makes the most money – but to the parent whose place and circumstances are the best for the children that keeps them in contact with their family and disrupts their lives the least. In our experience you win custody not by running down the other parent but by showing what a good job you will do as the custodial parent.

The Court wants the children to see both parents as much as is reasonable so if a parent makes it hard for the other parent to see the children that will go against them in a contested hearing.

Often times the Court will award joint “legal” custody to both parents with “physical” custody to the parent who will live with the child. This reassures both parents that third parties treat you right when you ask for school records, medical records, or converse with day care people.

Joint or split custody can be worked out when parents get along well and where such an arrangement is in the best interests of the children.

A child’s wishes may be considered by the Judge and, if the child is older and mature, then the child’s wishes may even be dispositive in deciding custody. But the Judge will not allow a small child to dictate legal matters – particularly if it is against the best interests of the child.

Visitation is best worked out between the parties since everybody has different schedules. A long distance trucker will see his children less often but perhaps for longer visits while a banker may be able to see them more often. If the parties work well together the Court will order visitation be set at “reasonable” times and adjusted by the parties. If the parties fight then the Courts will typically set visitation with minimum visits and such other times as is reasonable. A typical schedule is every other weekend, perhaps one night a week, alternate holidays and a couple of weeks during the summer and such other additional times as the parties agree.

Visitation is not an obligation and it is not a babysitting service. It is difficult to punish a parent who forfeits his visitation at the last minute – even if it means you must now take the children with you on your vacation.