Category:Family Law


Impact of Leaving Children Home Alone on Your Custody Case

Posted on July 5th, 2017, by Jonathan McHugh in Custody, Family Law. Comments Off on Impact of Leaving Children Home Alone on Your Custody Case

It is very common these days for both parents to work outside of the home, whether on a part-time or full-time basis. For many parents, this requires a juggling of responsibilities and it also requires making sure that children are supervised and looked after appropriately. It is difficult enough for many parents to find the appropriate care for their children when two parents are living under the same roof; however, the situation becomes even more complicated when parties are separated or divorced.

While Virginia law does not provide a specific age at which you can leave your child at home alone, many Virginia counties set their own guidelines for supervision of minor children. These guidelines are typically drafted and developed by social workers and other community members. These county-specific guidelines are not laws; however, not following them can have legal implications.

Virginia courts … Read More »


Which Court Should You File In?

Posted on June 26th, 2017, by Livesay & Myers, P.C. in Custody, Divorce, Family Law. Comments Off on Which Court Should You File In?

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 »


Change in Virginia Family Law Regarding Life Insurance

Posted on June 20th, 2017, by Brianna Salerno in Family Law. Comments Off on Change in Virginia Family Law Regarding Life Insurance

A new law goes into effect in Virginia on July 1, 2017, giving courts the authority to order a party paying spousal support to maintain an existing life insurance policy for the benefit of the payee spouse. This change to Virginia family law will come from a new statutory provision, Va. Code § 20-107.1:1.

The existing life insurance policies must be on the payor spouse’s life, not the payee spouse’s life. Additionally, the policy must have been issued during the marriage, through the insured’s employment, or be within effective control of the insured provided that the insured party has the right to designate a beneficiary during the marriage and the payee is a party with an insurable interest.

This new Virginia code provision effectively overrules the holding under Lapidus v. Lapidus, 226 Va. 575 (1984). In Lapidus, the Supreme Court held that nothing … Read More »


Divesting Jurisdiction in Virginia Family Law Cases

Posted on May 24th, 2017, by Livesay & Myers, P.C. in Custody, Family Law. Comments Off on Divesting Jurisdiction in Virginia Family Law Cases

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 »


Service by Publication in Virginia Divorce Cases

Posted on May 15th, 2017, by Livesay & Myers, P.C. in Divorce, Family Law. Comments Off on Service by Publication in Virginia Divorce Cases

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 »


Rental Income and Child Support in Virginia

Posted on May 8th, 2017, by Laila Raheen in Family Law. Comments Off on Rental Income and Child Support in Virginia

For purposes of calculating child support, the Virginia Child Support Guidelines take into account each parent’s gross income. Virginia Code § 20-108.2(C) defines “gross income” as “income from all sources,” including but not limited to:

income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.

§ 20-108.2(C) further provides that “[g]ross income shall be subject to deduction of reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business.”

Pursuant to this code section, Virginia courts have consistently deducted expenses associated with rental properties from the rental income on those properties in calculating gross income. Some of the expenses commonly deducted include: mortgage payments, taxes, insurance, … Read More »


Sole Custody of Children in Virginia

Posted on April 13th, 2017, by Amanda Stone Swart in Custody, Family Law. Comments Off on Sole Custody of Children in Virginia

People undergoing the process of separation and divorce face many major, life-changing events all at one time. First and foremost in the minds of most parents in this situation is the issue of child custody. The initial question on the minds of many is: “Can I get sole custody of my kids?” While many parents are inclined to seek sole custody of their kids, very few are familiar with what the term “sole custody” actually means, and the difficulty that comes with trying to win sole custody of children in Virginia. 

In Virginia, there are two types of custody: legal and physical. Legal custody is the right to make decisions for your children, including major decisions such as healthcare, education, and religious upbringing. Physical custody is where the children live. Visitation is a subset of physical custody, and can be generally … Read More »


Unenforceable Custody and Support Provisions in Separation Agreements

Posted on March 28th, 2017, by Ariel Baniowski in Custody, Divorce, Family Law. Comments Off on Unenforceable Custody and Support Provisions in Separation Agreements

It is not uncommon for people undergoing divorce to approach their attorneys with a laundry list of terms regarding their children that they would like included in their separation agreement, or for people who already divorced to approach attorneys with child-related terms of an existing separation agreement which they want to enforce. What many people are surprised to hear is that some of those terms which they would like included, or some of the terms that may already be in their agreement, are actually unenforceable under Virginia law.

The first thing to understand in this area is that provisions in agreements regarding child custody, visitation and child support are always modifiable based upon a material change in circumstances. Always! So, any provision in an agreement which indefinitely prohibits the modification of custody, visitation or child support would be unenforceable.

Secondly, there are … Read More »


Marital Waste in Virginia Equitable Distribution Cases

Posted on March 16th, 2017, by Livesay & Myers, P.C. in Divorce, Family Law. Comments Off on Marital Waste in Virginia Equitable Distribution Cases

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 »


Adultery As a Crime: Impact on Virginia Divorce Cases

Posted on March 2nd, 2017, by Jonathan McHugh in Divorce. Comments Off on Adultery As a Crime: Impact on Virginia Divorce Cases

So, you think, or you know, that your spouse is cheating on you. As devastating as this discovery can be, many people are just as devastated to find out that Virginia law can, and often does, protect the adulterer.

In Virginia, adultery is defined as the act of sexual intercourse by a married person with any person who is not their spouse. It is a ground for divorce under Virginia Code § 20-91. It is also illegal, a Class 4 misdemeanor according to Virginia Code § 18.2-365. While adultery as a crime is rarely, if ever, prosecuted, the fact that adultery is still technically illegal in Virginia has a significant impact on many divorce cases.

For a court to grant a divorce on the ground of adultery, Virginia law requires proof by “clear and convincing” evidence, a higher standard of proof than other grounds … Read More »


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