Collaborative Divorce is a promising method for reaching an agreement on controversial issues in a divorce. Two hallmark features separate the collaborative method from other non-litigation approaches:
First, the bulk of the negotiations in a collaborative divorce takes place in group settlement meetings with both parties and both attorneys present. (In certain circumstances,the parties may also opt to have financial advisors or mental health professionals present as neutral participants who can provide information to the parties to aid their decision making.)
Second, if either or both parties withdraw from the collaborative process and turn to litigation, both of the collaborative attorneys would be disqualified from representing their former clients in any related court proceedings.
Collaborative divorce is well suited for matters involving complex finances or children's issues. A collaboratively trained family law attorney can help you determine whether a collaborative divorce would be appropriate for your case.
The division of assets and debts in a Virginia divorce is commonly referred to as equitable distribution (or ED for short). In a contested divorce, equitable distribution of assets and debts is governed by Virginia Code §20-107.3.
Under this statute, the Court must first classify all property owned by the parties as either Marital Property, Separate Property, or a combination of these (referred to as Hybrid Property). For Hybrid Property, the court must determine what percentage of each such asset is marital. A similar process of classification is applied to the parties' debts.
Once the Marital assets and debts are identified, the Court must determine how to allocate them between the parties. Although it is common for Virginia courts to divide Marital assets and debts 50/50, nothing in the Virginia Code requires such a division, and there are sometimes factors in play that could justify a very different allocation of assets and debts in a divorce.
A Virginia family law attorney can help you determine what approach to equitable distribution is appropriate in your case.
Custody and parenting time can be one of the most emotionally fraught aspects of a divorce. If this issue can be settled by the parents, without invoking litigation, this is obviously the preferred approach. If the issue of custody and parenting time is litigated, the judge will focus on what is in the children's best interests, which might not correspond to what either parent wants.
In order to make a determination as to what is in the children's best interests, a judge is required to take into account a series of factors set forth in Virginia Code §20-124.3. Examples of such factors include the mental and physical condition of each parent, and the relationship existing between each parent and each child. The preference of the child may also be taken into account if the judge finds the child to be "of reasonable intelligence, understanding, age, and experience to express such a preference."
A Virginia family law attorney can help you make sense of the myriad considerations that go into a custody determination.
In Virginia, child support is determined by a guidelines formula, set forth in Virginia Code §20-108.2. The inputs for the formula include the custody schedule, the number of minor children, each party's gross income, the amount each party pays for work-related childcare, and the amount paid for the children's health insurance.
While the formula seems simple, complications can arise when one or both parties' income is not consistent (for example, if someone is paid on commission or is a business owner), when the parties disagree on what appropriate childcare costs are, when there are minor children from prior relationships, or when one party feels that a deviation from the guidelines formula is necessary. Questions about who pays for the children's camps or private schools, how the children's unreimbursed medical costs are allocated, and who gets the tax deductions associated with the children also fall under the rubric of child support.
A Virginia family law attorney can help you understand the various considerations that go into an award of child support.
Spousal support may include "pendente lite" support, awarded on a temporary basis while the divorce is pending, as well as post-divorce spousal support. In Virginia, there is a guidelines formula for determining pendente lite spousal support, which applies in most circumstances (though, as with child support, disagreements can arise regarding the appropriate inputs for the guidelines). Post-divorce spousal support is more complicated, and requires that the judge assess and weigh a series of factors. Post-divorce spousal support can range from a single lump-sum payment, to "rehabilitative" support to help a party get on their feet after being away from the job market, to permanent spousal support which continues until the death of one of the parties. When the parties are proceeding by agreement, there is a lot of room for creativity when fashioning the parameters of an appropriate spousal support award, but there are many pitfalls to watch out for as well.
Whether you are potentially the payor or the payee, a Virginia family law attorney can advise you on the various types of spousal support available and the best way to work toward your specific goals regarding support.
What happens if you have a court order in place and the other party violates it (for example, by failing to pay spousal support on time)? In such instances it is possible to ask the court to hold the offending party in contempt, and take other measures designed to induce compliance with the court's order.
This is accomplished via a proceeding known as a rule to show cause. How the petition for a rule to show cause is framed may depend on whether the order in question was arrived at through agreement or through litigation. It can also depend on the sorts of issues at stake (for example, violations of orders involving children's rights tend to have stronger consequences than violations involving only adult issues).
If you find yourself in the unfortunate position of dealing with an ex-spouse who habitually flouts a court order, a Virginia family law attorney can help you understand your options for enforcing your rights under the order.
Things change: people move, find new jobs, get remarried... Sometimes a custody and parenting time order put in place when the children were very young no longer functions well when the children become teenagers.
Whether, and to what extent, a prior court order is modifiable depends on many factors. Typically, children's issues (child support and custody) may be presented to the court for modification upon a showing of a material change in circumstances. Of course what constitutes a material change can be hard to pinpoint, and much litigation ensues over whether such a change has occurred (and thus whether the court has jurisdiction to revisit these issues). Whether spousal support can ever be modified, even upon a showing of a change in circumstances, depends on a variety of considerations too numerous to list here. Orders regarding distribution of assets and debts are typically not modifiable, though there are rare exceptions.
A Virginia family law attorney can help you understand your options for modifying prior court orders given the facts of your specific situation.
In Virginia, premarital agreements (often referred to as "prenups") are governed by the Virginia Premarital Agreement Act. The sorts of issues that can be addressed in a prenup include the disposition of property upon separation or divorce and the parties' respective spousal support obligations. Because so many things may occur in the future that could affect the nature of the property held by the parties, it is important to consider numerous hypothetical scenarios to ensure that the agreement is drafted in a manner that durably reflects the parties' intentions.
While it seems counter-intuitive, talking honestly about what each party would like to see happen if the couple were to divorce can actually strengthen a relationship and enhance the parties' ability to communicate with each other.
If you are considering a premarital agreement, it is best to consult with Virginia family law attorney as early as possible about this, and not to wait until just before the wedding to tackle such issues. Please note that due to conflicts rules, we can only represent one party to a premarital agreement; the other party will need to consult with their own attorney.
An acceptable global settlement agreement is the goal in all family law cases, as it allows the parties to avoid the stress and expense of litigation. There are a number of ways that a settlement might be reached: the parties may have already worked out what they want prior to contacting attorneys; they may retain a neutral mediator to assist with their negotiations; they may opt to pursue a collaborative divorce; and, in cases already within the court system, a settlement conference with a retired judge may be available to the parties and counsel.
Whatever method you use to reach a compromise with the other party, it is extremely important that your agreement be correctly committed to written form. The fully executed global Marital Settlement Agreement forms the basis of an uncontested divorce.
A Virginia family law attorney can help you determine what methods of alternative dispute resolution might be appropriate for your case, and ensure that your ultimate agreement is properly drafted.
While reaching a fair settlement agreement is always our priority, sometimes this is not possible, and the case ends up in litigation. In those instances, we fight vigorously for our clients. Kitt is a seasoned trial attorney who enjoys all aspects of litigation – from initial pleadings, though discovery and depositions, to closing arguments and entry of a final order.
In Virginia, divorce cases are tried in the Circuit Court. However, the Juvenile & Domestic Relations District Court has concurrent overlapping jurisdiction to hear certain family law issues pendente lite while a divorce is pending. The J&DR will also determine custody and child support for children when the parents are not married.
The strategy employed in any given course of family law litigation depends on the facts and issues at stake, as well as the client's goals and values. If you are facing litigation, a Virginia family law attorney can help you map out a trial strategy that best addresses the needs of your case.
Appeals in family law matters are typically initiated at either of two levels: (1) from the Juvenile & Domestic Relations District Court to the Circuit Court, or (2) from the Circuit Court to the Court of Appeals. In certain rare circumstances, an appeal from the Court of Appeals to the Virginia Supreme Court might also occur in a family law case. Both of the primary types of appeals noted above are appeals "of right" in family law matters – meaning the party wishing to appeal does not need to obtain permission from the court in order to initiate the appeal. Beyond that similarity, though, appeals from the J&DR to the Circuit Court and from the Circuit Court to the Court of Appeals differ radically. The two types of appeals each have their own specific procedures, deadlines, and standards of review – all of which must be taken into account when deciding whether to appeal a ruling from the lower court.
A Virginia family law attorney can help you determine whether an appeal is appropriate in your case, and if so, assist you in navigating the often complicated appellate landscape.
Photo Credit: Morgan Riley