J&DR courts have jurisdiction over most family law issues, including custody, visitation, child support and spousal support—when they are not part of a divorce action (cases involving unmarried individuals who share children) or when a divorce action has not yet been filed. Alternatively, circuit courts have exclusive jurisdiction over divorce and equitable distribution (property division) cases, but have concurrent (shared) jurisdiction involving matters of custody, visitation, child support and spousal support.
Family law matters that start out in J&DR courts often move up to circuit courts. In the first instance, since J&DR is not a “court of record” (a trial court in which a record of the proceedings is made for the possibility of appeal), a litigant who received an unfavorable ruling can automatically appeal to circuit court for a trial “de novo” (brand new trial) without any needed grounds for appeal.
In the second instance, pursuant to Virginia Code § 16.1-244, a litigant in J&DR court who subsequently files a Complaint for Divorce in circuit court can “divest” the J&DR court of jurisdiction. In other words, if at any point a spouse files for divorce in circuit court, the case can be removed from the J&DR court’s jurisdiction.
Prior to the recent amendment to Virginia Code § 16.1-244, there was apparent discord in Virginia circuit court opinions as to whether child support and spousal support awards in divestiture cases should be retroactive to the date of filing the J&DR court action or to the date that the case was subsequently filed in circuit court.
The Virginia General Assembly provided clarification by amending Virginia Code §§ 16.1-244(A), 20-103 and 20-108.1, providing that child support or spousal support shall be retroactive to the date of the filing of the J&DR court proceeding, provided timely service is made and the J&DR court order was not final. This amendment reverses a previous Virginia Court of Appeals decision holding that the date of the circuit court filing applied where a J&DR court proceeding was appealed and the cases were consolidated.
These recent changes to the law protect the support needs of a child and/or spouse while they await trial in J&DR court for several months before a divestment of the case occurs, or when there is an appeal of the court’s ruling to circuit court.
If you have questions about which Virginia court would be most beneficial for you to proceed in, be sure to consult with an experienced family law attorney as early in the process as possible. Livesay & Myers, P.C. has a team of experienced family lawyers across five convenient office locations in Northern Virginia. Contact us to schedule a consultation today.