Family law is a specialized area of law dealing with domestic relationships and family-oriented issues. While a large majority of family law proceedings are a result of a separation or divorce, a Virginia family law attorney may also assist with other types of cases, such as child custody, child support, visitation, adoption, alimony, prenuptial agreements, paternity or protective orders. Every state has its own set of unique laws that govern how family law cases are handled. Here is a look at how different areas of family law are managed in Virginia.
There are several situations in which a married couple may require the legal help of a qualified Virginia family law attorney.
Virginia divorce laws govern the correct proceedings for divorce and the circumstances under which a married couple can obtain a divorce. In Virginia, at least one party must be a resident and domiciliary of the state for at least six months before the filing of a divorce complaint. In addition, a married couple with minor children must have one year of separation before “no fault” grounds can be the basis of a divorce filing (but if the couple has signed a binding settlement agreement resolving all of the issues and does not have minor children, they may seek a divorce after six months of separation.) When you file for a no-fault divorce, you are not required to prove that your spouse is guilty of wrongdoing in the marriage that resulted in your desire to divorce. There are a number of grounds for a fault-based divorce such as desertion/abandonment, adultery, and cruelty.
Besides a divorce, an annulment is a second way that a marriage can be terminated. Anulments are very uncommon because Virginia law enumerates the specific facts that must be present to qualify for an annulment, and such facts are usually lacking. The annulment process is difficult to navigate without the assistance of an experienced family-law attorney. An annulment differs from a divorce insofar as it legally “erases” the marriage as if it never happened. If an annulment is granted, the court cannot for example award spousal support, because spousal support requires a valid marriage. A trial is required to determine if the marriage is void, meaning it was never legally established, or voidable, meaning for certain reasons the marriage should be voided.
Separate Maintenance is a common-law doctrine that historically was used when a person needed financial support, but for whatever reason did not or could not file a divorce action (such as if grounds for divorce did not exist). Separate maintenance has now been codified into the Virginia Code. Separate Maintenance is essentially spousal support/alimony. If/when a divorce is granted and spousal support is awarded, the Separate maintenance payments terminate.
Child custody laws in Virginia govern how child custody decisions are made and the proceedings that follow. Child custody, child support, and visitation are all issues determined in the state’s Juvenile and Domestic Relations District Courts or Circuit Courts. In Virginia, there are two types of child custody that a parent or guardian can be granted: legal custody and physical custody. Based on state laws, the noncustodial parent has the right to visitation/custodial time with the child unless in extreme situations it is determined by the court that visitation would be in some way harmful to the minor. For example, if the noncustodial parent was convicted of child abuse in the past, he or she may be granted supervised visitation or, in some cases, not be granted visitation rights to the child.
Fathers have a legal obligation to provide support for their children and are entitled to ask for custody and/or visitation. In some situations, before this can happen, paternity needs to be established. Often times a mother files a petition in the Juvenile Court requesting child support, and the alleged father files a motion requesting a paternity test; the court will normally grant that request, and the father is usually required to pay the costs of the test.
Unlike with child support, Virginia does not have a statewide formula for determining alimony. There are certain statutory factors that may influence a spouse’s ability to receive alimony. As a general rule of thumb, Virginia law does not permit permanent or open-ended alimony to spouses who have committed adultery. While not often possible, one of the legal tenets is that the court tries to maintain the needy spouse in the standard of living they were accustomed to during the marriage. Until recently, spousal support was tax deductible to the payor and taxable income to the recipient; as of January 1, 2019, spousal support is now treated the same as child support – it is non-taxable/non-deductible.
Family law is a broad practice area that encompasses many events, such as divorce, adoption, child custody, paternity, and similar matters that relate to family structure. Navigating the complex world of family law can be challenging on your own. As each state is different and handles family matters in a unique way, it is important to have someone in your corner who is familiar with local laws. For more information about Virginia family laws or to inquire about professional legal representation from a family law attorney, reach out to OFP Law.