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 not always the case.
There are several important considerations when deciding which court to file in:
- Are you filing an initial action or are you seeking to modify an existing court order? If you were previously married, the circuit court may have retained jurisdiction over all matters relating to custody, visitation and support, or it may have transferred jurisdiction over those matters to the J&DR court.
- Are you married? If you are not married, you will need to file in the J&DR court. If you are married, you have the option to start in the J&DR court or file in circuit court.
- Do you have grounds for divorce? If not, you will need to file in the J&DR court or you can wait until you have grounds for divorce.
- Are you living under the same roof? If you and your spouse are residing together under the same roof, the court cannot make an award of custody, visitation, child support, or spousal support. In very rare circumstances, the court may determine on a temporary basis that one of the parties must leave the former marital residence.
- Do you have children? As child support is retroactive to the date of filing, it may be advantageous for the primary physical custodian to file in court sooner rather than later. Keep in mind, however, that the court must make a determination as to custody before it can make a determination on child support, so there is a risk that an attempt to receive child support sooner may backfire if the other party is awarded primary physical custody.
- Is spousal support a consideration? The J&DR court and the circuit court handle spousal support differently. Whereas the J&DR court will use the Virginia guidelines to determine spousal support just as it does for child support, the circuit court is not bound by the spousal support guidelines.
- When is your matter likely to be heard, and how much time will you get for your hearing? This varies by jurisdiction and is one of the considerations you should discuss with your attorney in a consultation.
- What are your financial resources like? For most divorcing couples, it is more efficient to begin in circuit court when there are grounds for divorce or to start in the J&DR court and plan to divest jurisdiction to the circuit court. When starting in the J&DR court, you risk having some uncertainty and potentially wasting time and financial resources, as the other party may choose to divest jurisdiction to the circuit court.
- How difficult is it to appeal? Either party may appeal from the J&DR court to the circuit court within ten (10) days. Thus, you may have a full trial in the J&DR court, only to have that matter be heard in circuit court on appeal—forcing you to repeat the process all over again. Appealing from the circuit court to the Virginia Court of Appeals, however, is a much more time and labor-intensive process, and discussion of the appeals process is outside of the scope of this article.
If you have questions about where to file your family law case, be sure to consult with a family law attorney in your jurisdiction. The family lawyers at Livesay & Myers, P.C. have years of experience with divorce, custody and support matters in courts across Northern Virginia. Contact us to schedule a consultation today.