The Livesay & Myers, P.C. Blog
Virginia law allows for several different types of custodial arrangements. It is important for any party going through a custody case to understand the differences and similarities between these different types of custody.
Sole Custody. With “sole custody,” one parent assumes the major role in the physical, emotional, and moral development of the child. The custodial parent has primary authority to make all major decisions affecting the child, who lives primarily with this parent. Sole custody is defined under Virginia Code Section 20-124.1 as an arrangement whereby “one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.”
Joint Custody. In a “joint custody” arrangement, both parents assume responsibility for the physical, moral, and emotional development of the child, and there are shared rights and responsibilities for making decisions that affect … Read More »
Virginia Code Section 20-103 provides that in any case where spousal support or child support is in dispute, a Virginia court may enter an order of temporary support pending the conclusion of the suit. Section 20-103 applies in suits for divorce, annulment, and separate maintenance and also in spousal support and child support proceedings brought in the juvenile and domestic relations district court (“JDR Court”).
Such a “pendente lite” order of support will last until the conclusion of the case, at which time the court may order more or less support, or no support at all, depending upon the facts of the case.
For child support, the statewide guidelines, which establish a “presumptively correct” amount of support, apply equally at both pendente lite and final hearings.
For spousal support, a JDR Court that is determining a request for pendente lite spousal support must … Read More »
Grandparents love nothing more than their grandchildren. But what do you do when you are a grandparent who is not allowed to see your grandchild? This situation often arises when parents are separated and the custodial parent does not get along with the non-custodial parent’s family. If you are in this situation, there may be recourse for you through the courts via a visitation order.
The standard Virginia Courts use when determining whether or not to award grandparents visitation with their grandchildren depends upon the parents’ stance on the visitation:
When both parents object to visitation, the court may not award visitation to the grandparents unless there a showing of actual harm to the child’s health or welfare without such visitation;
When the custodial parent objects and the non-custodial parent affirmatively requests the court award the grandparents visitation, the court may award visitation … Read More »
Where a couple was married 10 or more years and then divorce, each party will be paid the greater of his/her own Social Security benefit or a spousal benefit. Spousal benefits generally are equal to 50% of the primary wage earner’s benefit. The gender of the spouse is irrelevant, although historically this has had a greater impact on ex-wives.
It is important to understand that there is no impact on the primary wage earner’s benefit. If an ex-wife chooses spousal benefits based on her marriage to a former husband, it will not reduce the amount the ex-husband receives in Social Security.
For an example: assume Suzy and John are married over 10 years, then divorce. Suzy then marries Edward, stays married to him for over 10 years, then divorces Edward as well.
At retirement, Suzy will be entitled to choose the greatest of … Read More »
Emergency protective orders can be issued in Virginia 24 hours a day, 365 days a year. An emergency protective order can be issued by any circuit court, general district court, or juvenile and domestic relations district court judge, or by any magistrate. Given the urgency of many situations, a law enforcement officer may request an emergency protective order orally, in person, or by electronic means. The judge or magistrate may issue an oral emergency protective order, which must be reduced to writing by the law enforcement officer who made the request.
Because of the emergency nature of family abuse situations, an emergency protective order can be issued ex parte, with no notice to the alleged abuser (the defendant). There must be reasonable grounds to believe that the defendant has committed family abuse against a family or household member and that there … Read More »
Parents who take it upon themselves to deny visitation rights without following the proper channels through the courts, do so in violation of Virginia law. Even in cases of non-payment of child support, it is simply not appropriate for a parent to arbitrarily deny court-ordered visitation.
“My Ex Won’t Let Me See My Child!”
A parent who refuses to allow another parent visitation that has been court-ordered risks being found in contempt of court. If the offending parent does not comply with the order, by allowing the court-ordered visitation, that parent could face jail time or a fine.
If one parent believes the other parent should not have visitation, for whatever reason, the proper way to handle the situation is through the courts. If it is an emergency situation, such as violence or abuse, the court can award an emergency order followed by … Read More »
In alimony or child support cases, Virginia law allows the court to find a party is voluntarily unemployed or voluntarily underemployed, and to calculate support based on a higher income than he or she is actually earning. As the Virginia Court of Appeals has written, “[a] court may under appropriate circumstances impute income to a party seeking spousal support. This conclusion logically flows from the principle that one who seeks spousal support is obligated to earn as much as he or she reasonably can to reduce the amount of the support need…. A spouse may not choose a low paying position that penalizes the other spouse.”
Virginia Code § 20-107.1 directs the trial court to consider as a spousal support factor each party’s earning capacity. For child support, imputed income is a deviation factor listed in Virginia Code § 20-108.1(B)(3). The court must … Read More »
For most uncontested divorces, the parties will need to execute a property settlement agreement, commonly known as a “PSA,” settlement agreement, or simply a separation agreement. With the growing availability on the internet of forms and samples for such documents, some people feel confident in drafting an agreement without the assistance of an attorney. These agreements may turn out to be valid and work for some people, but may result in financial disaster for others.
Language in a separation agreement may seem to have one meaning, but may have an entirely different legal meaning. As an example: John and Ellen sign a separation agreement stating they will “share” physical and legal custody of the child. However, Ellen keeps the children most of the time. Without knowing anything else about this agreement, Ellen may have opened the door for a smaller amount … Read More »
More details surfaced this week on the Administration’s proposal to expand concurrent receipt to service members who were medically retired, sometimes referred to as Chapter 61 retirees.
Under the Administration’s Omnibus proposal, all Chapter 61 retirees will become eligible for Concurrent Retirement and Disability Pay (CRDP) over a five-year period starting in January 2010. The expansion will come in two phases.
The first three years of the five year phase-in opens CRDP eligibility to the more severely disabled Chapter 61 retirees with less than 20 years of service.
On January 1, 2010, Chapter 61 retirees with less than 20 years of service and a VA rating of either 90% or 100% become eligible
On January 1, 2011, Chapter 61 retirees with less than 20 years of service and a VA rating of either 70% or 80% become eligible
On January 1, 2012, Chapter 61 retirees … Read More »
Spousal support (alimony) is often the toughest nut to crack in a contested divorce in Virginia. More and more, Virginia Courts seem to be relying on some “local guidelines” in determining spousal support—guidelines that seem to favor the payor of support.
The spousal support issue arises in any Virginia separation or divorce case where the parties have been married for any substantial length of time and there is a significant gap in the parties’ income. When spousal support comes into play, the parties and their attorneys (and the Court, if the parties cannot agree) have to sort out (a) how much spousal support should be paid, and (b) for how long. I won’t get into the “for how long” issue here—perhaps I’ll address that in a future post. But I do want to talk about the “how much” question.
With CHILD support … Read More »