Family Law
We understand the stress and vulnerability that our family law clients face when dealing with dramatic changes in their family life that accompany the prospect of separation and divorce. We help our clients move beyond the conflicts to a successful resolution of the issues.
Separation
After the difficult decision to initiate a marital separation has been made, the reality of how to effectuate the physical separation and the accompanying details can be daunting and, at times, seem overwhelming. Our attorneys are experienced in helping our clients deal with the reality one step at a time. Resolution of custody, visitation, child and spousal support, payment of debt and allocation of assets may occur through negotiation, mediation, or court resolution and we are experienced in helping our clients identify what would work best for them.
If the parties can reach a mutual agreement to resolve the issues between them, our attorneys can draft a comprehensive agreement outlining the terms of their agreement. This document will be in the form of a contract, sometimes referred to as a Property Settlement Agreement, or Separation Agreement, or Marital Settlement Agreement.
If the parties are unable to reach an agreement, our attorneys are experienced in representing clients before the Circuit Court and the Juvenile and Domestic Relations District Court (JDR Court) to obtain a fair and equitable resolution of their family law issues. The determination of the issues by court will be set forth in an Order or Decree.
Either by agreement of the parties or by court resolution, the attorneys at Farrell & Croft, P.C. have the experience and demeanor to effectively and aggressively represent your family law interests, from the most basic issue of child support to the most complex issues including division of closely held business assets, retirement benefits, military benefits, and stock options.
Divorce law is governed by the states and the laws vary from state to state. Virginia law requires at least one of the following grounds for divorce exists before a party may file for divorce:
- Separation for a period exceeding one (1) year or, if the parties have no minor children and have a written settlement agreement, separation for a period of 6 months
- Willful desertion
- Cruelty and constructive desertion
- Fraud
- Other grounds, including annulment for bigamy, felony conviction and incarceration
Pursuant to divorce, the court also has authority to determine issues involving custody, child support, spousal support, property division, apportionment of debt, and attorney fees. The court may grant the parties temporary relief, without prejudice, to stabilize the family situation until the parties are able to reach an agreement or the court is able to resolve the issue in a full and final hearing that may not occur until months or even years after the initial complaint for divorce is filed. The timeline for a divorce (PDF 12k) from start to finish can vary substantially depending on the issues of each case and when, if ever, the parties are able to reach an agreement on the issues which the court would otherwise have to determine upon divorce.
Custody and visitation issues can be some of the most challenging family law issues because of the sensitive nature of these issues. Parents can and often do have different approaches to child-rearing. Differences on discipline, religion, education, and supervision can make co-parenting difficult, particularly upon separation and divorce.
Virginia law generally favors joint legal custody, where the parties share decision-making responsibility for their children. If only one parent is charged with the responsibility for making legal decisions for or on behalf of the children, then that parent is considered to have sole custody.
Physical custody refers to the amount of time that each parent spends with his or her children. The parent that spends more physical time with the children has primary physical custody and the other is referred to as having visitation with the children. If both parents spend a considerable amount of physical time with the children, the parents are considered to have shared physical custody.
The best interests of the children require parents to reach some acceptable compromise on their parenting preferences. If the parents are unable to agree on matters of legal and physical custody, however, the courts will consider all relevant evidence on the factors required under Virginia law (§ 20-124.3).
Pursuant to Virginia law, both parents have a duty to support their children. If the parents cannot agree on the amount of child support to be paid, the courts will determine the amount of child support by reference to the Virginia Child Support Guidelines (PDF48k). Virginia law creates a rebuttable presumption that the child support amount determined by application of the Guidelines is appropriate in each case. The presumptive Guideline amount is easily calculated using a standard worksheet [link to worksheet] based to a large degree on the following:
- The parties respective average monthly gross income
- The amount of spousal support paid between the parties, if any.
- The amount of time each child has with the child (in cases where each parent has the children at least 90 days each year (as the term "day" is defined by law) (§20-108.2)
- The cost of providing medical, dental, and/or vision insurance for the children
- The cost of daycare expense, if any, for work-related reasons
The court must also consider the best interests and can deviate from the Guideline amount for certain reasons set forth by statute (§20-108.1).
Spousal support, also referred to as alimony or separate maintenance, is paid by a spouse with the financial ability to the spouse with a legitimate need. Spousal support is an obligation that arises from marriage and is not available to persons who are not lawfully married. Spousal support may be paid by a husband or by a wife and is not gender specific. The court must consider many factors in determining the amount and duration, if any, that spousal support is to be paid.(§ 20-107.1). The court may order spousal support to be paid while the divorce action is pending (§ 20-103) and, after the divorce has been granted, for a specific or unlimited period of time, in lump sum and/or in monthly amounts.
The court, upon divorce, must value and divide marital property equitably or fairly. Marital property is all property that is not separate and is further defined by law (§20-107.3). The classification of property as "separate" or "marital" is not determined necessarily by title, but rather by how and when a party acquired it. Classification of property as "marital" or "separate" is an important part of the process and is frequently more complicated than what parties would otherwise assume.
In Virginia, the court may only divide marital property between the parties. The process of dividing marital property in Virginia is referred to as Equitable Distribution. Equitable distribution of marital property, under Virginia law, does not necessarily mean "equal division" of marital property. In determining the equitable or fair division of marital property, the court must consider all relevant evidence on the statutory factors set forth under Virginia law (see Equitable Distribution Factors).
Marital debt is that debt which is incurred for the benefit of the marriage during the marriage by either party, regardless of whether that debt is titled jointly or is solely in the name of either the husband or wife. The court has the authority to apportion marital debt between the parties equitably or fairly and must consider the equities of each case and other factors as required by Virginia law (§ 20-107.3).
Family law issues are submitted to a court for determination if the parties are unable to reach an agreement. Once the resolution of the issues, either by virtue of a court ruling or by agreement of the parties, becomes a court order, the resolutions are enforceable by the court. Enforcement is generally effectuated through a Rule to Show Cause, which requires non-compliant parties to come before the court and explain why they should not be found in contempt for failing to obey the court order. There are many different penalties that can be imposed for contempt, including but not limited to incarceration until the non-compliant party has corrected the violation.