Many family law clients ask the same question during their initial consultation: “which court should I file in?” In Virginia, both the juvenile and domestic relations district court (“J&DR court”) and the circuit court handle family law cases. The J&DR court has the power to hear matters concerning custody, visitation, child support, and spousal support. The circuit court can hear all of the same issues, in addition to divorce and equitable distribution.
Unmarried couples with children must file in the J&DR court for custody, visitation, and child support to be determined. For couples who are divorcing, there are factual, procedural, and strategic considerations that come into play when determining which court to start in. Generally speaking, if one of the parties has grounds for a divorce, it may make more sense to begin the matter in circuit court, but this is … Read More »
In Virginia, there are two types of courts that handle family law cases: juvenile and domestic relations district courts (“J&DR courts”) and circuit courts. Circuit courts have the authority to hear divorce cases and all matters stemming from divorce, including child custody, visitation and support, spousal support and equitable distribution. J&DR courts can hear cases of custody, visitation, child support and spousal support, but have no authority over divorce matters. J&DR courts thus hear many cases involving unmarried individuals who share children—but are not off limits to married persons by any means.
In some instances, married individuals may file petitions for custody, visitation or support in J&DR court, even if they intend to ultimately seek a divorce in circuit court. In many cases, neither individual of the married couple has grounds to file for divorce in Virginia, but still needs a determination … Read More »
If you do not know the whereabouts of your spouse, it is still possible to proceed with a divorce. Because each party in a divorce must have notice of any claims asserted against them, an absent spouse becomes an issue for purposes of service, which is the process by which parties to a case are provided with notice of the legal proceedings. In these cases, notice can be provided by using “service by publication.” Service by publication is the method of publishing an order, which acts as sufficient notice of the divorce proceedings to the spouse whose location cannot be found.
There are several potential issues with service by publication that you should be aware of if you intend to use this method in your divorce case.
First, service by publication is only to be used when one spouse truly has no … Read More »
In Virginia, a spouse who misuses or deliberately disposes of marital property to purposefully deprive the other spouse of their share upon divorce has committed “marital waste” or “dissipation of assets.” The court has the authority to consider such behavior in making an equitable distribution award.
But how does the court know when marital waste was purposeful? The general rule in Virginia, stated in Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569 (1988), is that “waste may be generally characterized as the dissipation of marital funds in anticipation of divorce or separation for a purpose unrelated to the marriage and in derogation of the marital relationship at a time when the marriage was in jeopardy” (emphasis added).
Marital waste typically occurs when one party transfers funds out of a marital account or otherwise misuses marital funds after the marriage begins deteriorating. … Read More »
The National Defense Authorization Act (NDAA) for 2017, signed into law in December 2016, drastically changes the way military retired pay can be divided in divorce cases. The new NDAA made major changes to the Uniformed Services Former Spouse Protection Act (USFSPA), which is the federal law enacted in 1982 that allowed states to divide military retired pay as marital property in divorce.
The original USFSPA did not provide for any particular division of a servicemember’s military retired pay. Rather, each state was able to develop methods of dividing military retired pay based on their existing state laws concerning division of property in divorce.
Virginia, as an equitable distribution state, awarded a former spouse a portion of the “marital share” of the servicemember’s retired pay. The marital share was a fraction of the total retired pay, with the numerator being the creditable service … Read More »
In most cases, when one thinks of adoption, they imagine a child being taken into a loving “forever” home. Virginia law, however, allows for the adoption of an adult, though specific circumstances must apply. For instance, a stepparent may adopt an adult stepchild if that stepparent has stood “in loco parentis” to the child for at least three months. Standing “in loco parentis” means standing “in place of a parent.”
In addition, a close relative of an adult may institute proceedings for the adoption. Under the applicable Virginia Code § 63.2-1242.1, a close relative is defined as a “grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, or adult great uncle or great aunt.”
The Virginia Code also permits a petitioner to adopt an adult if the person to be adopted is the birth child of the petitioner … Read More »
Prospective parents, when considering their options, may choose the international adoption route. When deciding whether or not this option is best for your family, it is important to have an idea what that process will look like. Some of the rules will differ depending upon whether you chose to adopt from a Hague or non-Hague convention country. The process will also vary based on the specific country from which you choose to adopt. What follows here is just a general overview of the international adoption process.
The Hague Convention, by the way, is an international agreement that sets forth common standards to protect children subject to an international adoption. If you are a United States citizen residing in the United States, and seek to adopt a child residing in another country subject to the Hague Convention, you will have to comply … Read More »
Are you separated from your spouse, or otherwise undergoing marital difficulties? If so, you may find yourself wondering whether your spouse can disinherit you. In Virginia, the short answer is no. Virginia law protects surviving spouses from being disinherited by allowing the surviving spouse to claim an “elective share” of the decedent’s estate if the decedent died without a will, if the spouse is omitted from the will, and even if the decedent explicitly disinherited the surviving spouse in the will. The right to an elective share continues even where the parties are separated or pending divorce, until a divorce is final.
What Are You Entitled to Under the Elective Share?
The answer to this question is going to change for decedents dying on or after January 1, 2017, based on some 2016 revisions to the Virginia Code.
For decedents dying before January … Read More »
Desertion v. Separation in Virginia
Virginia Code § 20-91 provides for divorce on either fault-based grounds or no-fault grounds in Virginia. The grounds for divorce listed there include, among others, both (a) the fault-based ground of willful desertion or abandonment, after one year and (b) the no-fault ground of living separate and apart without any cohabitation and without interruption for one year. The separation period for a no-fault divorce is shortened to six months where the parties have entered into a separation agreement and have no minor children.
All of which leads to this common question: how does one live “separate and apart” to qualify for a no-fault divorce, without being found guilty of willful desertion or abandonment?
Virginia courts distinguish desertion from mere separation by looking at the specific behavior of the parties. Courts have consistently found that one party moving out of the marital bedroom … Read More »
You have made the difficult decision to separate from your spouse, but there are insufficient funds in the family budget to support two households. Perhaps it is unclear which party will permanently remain in the marital residence, and neither is willing to move out without having a financial agreement in place. For whatever reason, you find yourself separated from your spouse while living under the same roof. There are several issues to be aware of if you are contemplating living with your spouse during separation in Virginia.
Clients frequently ask whether time spent separated yet living under the same roof as their spouse counts toward the requisite separation period necessary for a no-fault divorce. In Virginia, spouses can obtain a no-fault divorce after six months of living separate and apart without any cohabitation and without interruption, if there are no minor … Read More »