Divorce in Virginia is governed by statute.  See Virginia Code Title 20, Chapter 6, which can be found here.  Common issues in a suit for divorce include equitable distribution, spousal support, child custody, and child support among others.   Grounds for divorce from bond of matrimony (what is commonly considered of as 'a' divorce) are set forth in Virginia Code § 20-91 and basically include:

• For adultery; or for sodomy or buggery committed outside the marriage;
• Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act;
• On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. In any case where the parties have entered into a separation agreement and there are no minor children either born of the parties, born of either party and adopted by the other or adopted by both parties, a divorce may be decreed on application if and when the husband and wife have lived separately and apart without cohabitation and without interruption for six months...

Grounds for divorce from bed and board are set forth by Virginia Code § 20-95 and such a divorce may be decreed for cruelty, reasonable apprehension of bodily hurt, willful desertion or abandonment.

Information on many of the issues that arise during divorce are set forth below and we invite you to review the overviews provided.  However, it is almost always essential when seeking divorce that the advice of a qualified and experienced attorney be obtained.  Our attorneys can offer the advice and representation you will need so please contact our Downtown Lynchburg office if you are considering divorce or seeking information on divorce options.

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Spousal support is often an issue of utmost importance to our clients who are going through a divorce.  The determination of spousal support often depends on the court in which spousal support is determined and the nature of the hearing.  If temporary, or pendente lite, spousal support is being determined by a Juvenile and Domestic Relations District Court then a specific formula is applied to determine a presumptive amount of support.  See Virginia Code § 16.1-278.17:1.  The formula is set forth in section (C) of this statute:

• C. If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 28% of the payor spouse's monthly gross income and 58% of the payee spouse's monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 30% of the payor spouse's monthly gross income and 50% of the payee spouse's monthly gross income. For the purposes of this section, monthly gross income shall have the same meaning as it does in section § 20-108.2, as amended.

However, the court may deviate from this amount in certain circumstances.  It is important to understand when a deviation may occur and only an experienced attorney can provide you with the information necessary to foresee how the matter of spousal support may best be handled in the Juvenile and Domestic Relations District Courts.  Our attorneys have the knowledge and experience necessary to work through these issues with you and to see that your interests are adequately represented in court.

An award of temporary and/or permanent spousal support is also often sought in the Virginia Circuit Courts as part of a divorce proceeding.  In these cases there is not a specific formula for the court to apply.  Instead the court considers a number of statutory factors when determining a spousal support award.  This process is generally provided for in Virginia Code § 20-107.1.  These factors are set forth in Section (E) as follows:

• E. The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of § 20-91 or § 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under § 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;

12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and

13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Working through all of these factors in court and presenting them through evidence favorable to your case is often a big challenge.  It is also one of the most important challenges many face as part of the divorce process.   There is more to this process than can be covered in this brief overview thus it is imperative that you talk to a qualified attorney if spousal support will be an issue in your divorce.  Our attorneys have the knowledge and experience necessary to work through these issues with you and to see that your interests are adequately represented in court.

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The division of marital property by the court is referred to as "equitable distribution.  Equitable distribution is generally governed by statute.  Virginia Code § 20-107.3 sets forth the following factors as those to be considered by the court when deciding upon the division of marital property:

There are a number of other considerations that also apply to marital distribution.  One of the trickiest is often the determination of what is and what is not "marital property" to begin with.  It is of utmost importance that you obtain the assistance of an experienced family law attorney if you must go through the equitable distribution process in Virginia.  Our attorneys have the experience and knowledge to ensure that your rights and needs are looked after as a part of such proceedings.

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Child custody and visitation is often the single most important issue in the lives of single, separated, or divorced parents.  It is also the most stressful and emotionally challenging issue that many of us will ever deal with.  Our attorneys are here to help you whenever a child custody issue arises whether pre- or post-separation or divorce or in the case of single parents seeking custody or modification of previous custody decrees.  The importance of a well presented case in custody proceedings cannot be overemphasized.  Please seek the assistance of qualified counsel whenever custody of your children is at issue.

Child custody proceedings in Virginia are governed by statute.  The basic approach for the determination of custody and visitation is set forth at Virginia Code § 20-124.3, which generally states that the guiding principle in such determinations is the "best interest of the child".  Here are the factors as set forth in the statute:

• In determining best interests of a child for purposes of determining custody or visitation arrangements including any pendente lite orders pursuant to § 20-103, the court shall 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 each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

As one can imagine, covering each of these factors thoroughly is a complex and detailed process.  Our attorneys have years of experience with custody and visitation cases and can help you put on the best case possible in order to see that the best interests of your child or children are met.  Please contact our Downtown Lynchburg office if child custody or visitation is an issue in your life.

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Child support is primarily governed by statute in Virginia.   There is a rebuttable presumption that the statutory guideline amount is appropriate in all cases.  Once a court has determined the statutory guideline amount then arguments in favor of increasing or lowering that amount may then be presented.  Virginia Code § 20-108.2 sets forth the general guidelines for determination of child support as well as the tables for calculating the presumptive amount of support based on the parties' gross income and the number of children for whom support is sought.

There are  a number of other factors that affect the child support guideline amount.  One of the most important is the the custody and visitation arrangement, which determines whether the "sole custody" guidelines or "shared custody" guidelines are applied.  "Shared custody" guidelines are usually significantly lower than "sole custody" guidelines.  Generally, "shared custody" guidelines are used whenever each parent has at least ninety (90) days of custody or visitation each year with the child or children.  Other factors affecting child support calculations include childcare costs, insurance costs, household composition, and alternative income sources to name a few.

Once entered, a child support order is enforceable through the court's contempt powers.  The order usually remains in effect until modified or expiration.  In order to modify a child support order, the party seeking modification must show that there has been a change in circumstances justifying the requested modification.

Generally, Virginia courts have held that a change in either party's income is sufficient to justify child support modification.  However, if a party seeking a reduction in support has experienced a reduction in their income the reduction must not be due to their own voluntary act.  For instance, a party cannot quit a high paying job and take a lower paying job and expect for the court to reduce the amount of child support they owe.  In some cases the issue is whether or not a party has reduced income due to circumstances beyond their control, such as job layoffs, or the reduction in income was due to their being fired for stealing from their employer or termination due to workplace violations.  In the case of a layoff the court is likely to grant a reduction so long as the party shows a good faith effort to obtain new employment whereas in the case of termination for cause the court is unlikely to have any sympathy for the party who has lost a job due to their own bad acts.

It should also be noted that when there has been an award of child support based on the shared custody formula and one parent consistently fails to exercise custody or visitation in accordance with the parent's custody share upon which the award was based, there is a rebuttable presumption that the support award should be modified.

Whether you are facing an initial determination of child support or seeking to have a child support order increased or reduced, it is important to obtain legal representation from an attorney who understands all of the statutory factors as well as the case law that will affect the court's decision.

Our firm offers the experienced and knowledgeable representation you need to ensure that any child support case is decided justly after consideration of all the facts.

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Premarital agreements are basically contracts entered into prior to a marriage that  establish certain rights or limitations in the event of a future divorce.  Virginia Code § 20-149 sets forth the formalities required for a premarital agreement.  "A premarital agreement shall be in writing and signed by both parties. Such agreement shall be enforceable without consideration and shall become effective upon marriage."  Virginia Code § 20-150 establishes the allowable scope of any premarital agreements.   Parties to a premarital agreement may contract with respect to:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

4. Spousal support;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. The ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Notice that Virginia Code § 20-150(8) is a catch-all that pretty much allows the parties to agree to anything with certain limitations.

Premarital agreements are often used one of the parties has substantial pre-marital assets or liabilities that need to be protected from equitable distribution or substantially higher income than the other party that could significantly impact spousal support in the event of divorce.  Another reason to consider a premarital agreement is that it may serve as a tool to simplify and add predictability to the divorce process for those who are uncomfortable or unhappy with current legal policies and procedures in divorce.

Although many consider pre-marital agreements unnecessary, the high rate of divorce in our country indicates that they may not be such a bad idea.  This is especially true with respect to second or subsequent marriages, which have a higher divorce rate than first marriages.  Paying an attorney to prepare a premarital agreement almost always leads to significant cost savings in the event of a divorce.

Here is a basic list circumstances that may indicate the propriety of having a premarital agreement:

1. You or your partner has substantially more premarital wealth or substantially higher income.
2. This is a second or subsequent marriage for you or your partner.
3. You or your partner has substantially more debt.
4. You or your partner own part of a business or professional practice.
5. To protect your estate plan.
6. You or Your partner is planning to quit a job and give up income and/or work experience in order to raise children.

If any of these reasons applies to you then you should consider the possibility of a premarital agreement.   If you have any questions or concerns about premarital agreements or the process of obtaining one, please contact one of our experienced family law attorneys who can assist you in making an informed decision.

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