Month: June 2016

5 Things You Need to Know About Separation and Divorce in Virginia

divorce-decreeUnderstanding the ins and outs of your divorce case can be nearly as troubling and stressful as making the decision to file for divorce. Equipping yourself with a solid grasp of the nature of separation and divorce in Virginia can help you reach the most favorable outcome. To help you through the process, we’ve compiled a list of five important aspects of divorce law in Virginia.
  1. The Legal Definition of Separation in Virginia
Separation in Virginia can be best described as a physical separation. A married couple makes and follows arrangements to live separately. However, this definition does not imply that the couple has signed a formal Separation Agreement. Separation in Virginia is not the same as a legal or formal separation found in other states.
  1. The Importance of Separation Agreements
You’ll find Separation Agreements are called by many different names, but all can be defined as legal contracts. These contracts are agreed upon and signed by both of the parties involved. They cover important matters such as property, child custody, support, and finances to help spouses resolve disputes and narrow the issues regarding the divorce. Above all, a Separation Agreement is a legal document and can be enforced by the court. These documents may also be used in contempt-of-court proceedings once they are incorporated into a final decree of divorce. The matters decided upon in Separation Agreements are final except those regarding child custody and support as these needs may change.
  1. Separation as a Grounds for No-Fault Divorce
Separation serves as a basis for a no-fault divorce in Virginia. If a couple has children, the separation must be for at least one year in duration with no reconciliation on the part of the couple during that one year period. It must also be intentional. If the couple have no children under the age of 18, the separation may last for a shorter period of time, 6 months, and must include a Separation Agreement.
  1. Response Requirements
Response requirements depend on the residency of the receiving party. If you file for divorce and your spouse is a Virginia resident, he or she will have 21 days to respond. If your spouse lives in another state, the response time is extended to 60 days. In the case that your spouse lives outside the United States, he or she has 90 days to respond to the complaint. What happens if your spouse does not respond? If the service of process is successful, the court can still continue with the divorce. A hearing will be scheduled requiring the appearance of you and any corroborative witnesses. During this time, you and your spouse will have the opportunity to offer evidence. Once the hearing is over, the court will make a decision regarding the grounds of divorce and related settlements.
  1. How Residency Affects Divorce Processing
Where should you file for divorce? The complaint must be made in the circuit court where you or your spouse have established residency. It is important to meet the residency requirements before you file. In Virginia, you or your spouse must be able to prove residency in the state for at least 6 months before filing for divorce. If you are not able to prove that you or your spouse meet the residency requirements, your case may be dismissed. You may file for divorce in the county or city where you and your spouse last held residency or in the Virginian county or city where either of you resides. Our legal team at Melone Law, P.C. has significant experience in the area of family law, divorce, separation agreements, and residency requirements. To discuss your specific situation, contact us today for a case evaluation.

Child Support and Imputation of Income

What happens to child support when one parent switches careers or quits their job? Guideline Child Support Every parent has a duty to support their children, whether or not they are employed. When parents divorce or separate, one or both may petition the court for child support. The court will order both parents to provide income information, including paystubs and tax returns, in order to calculate the presumptive amount of child support. The guidelines can be found in 20-108.2 of the Code of Virginia. The guidelines will apply unless they are somehow unfair or inappropriate. If a parent chooses a lower-paying job or quits working altogether, he or she should not be allowed to avoid their obligation to pay child support. One solution is to impute income to a parent that chooses not to work or switches to a lower-paying profession. Imputation of Income Virginia courts have consistently held that a parent cannot avoid or reduce their child support obligation merely by switching careers or quitting their job. Under 20-108.1(B)(3) income may be imputed to a parent who is voluntarily unemployed or underemployed. The court will look at the parent’s earning capacity, training, and prior earning history in determining whether to impute income. A parent cannot voluntarily pursue low-paying employment to the detriment of support obligations to a child. Niemiec vs. Commonwealth, 27 Va. App. 446. In order to show voluntary conduct, the court will consider the parent’s reasons for leaving a position, their earning capacity, education level, and work history. The court held in Antonelli vs. Antonelli, 242 Va. 152 (1991) that the risk of success at a father’s new position “was upon the father, and not upon the children.” In that case the father left a salaried position as a stockbroker for a commissioned position in the same field. When his income was drastically reduced, he requested modification of his support obligation. The court held that his conduct in choosing a different job was made in good faith for legitimate business reasons, however, it was still voluntary and his child support would not be reduced. Other Grounds for Adjustment The court can also adjust the presumptive amount of child support if any of the following circumstances apply: 1) a parent provides support to other family members, 2) costs related to visitation with the children, including travel expenses, 3) debts incurred for the child’s benefit, 4) special needs of the child, 5) standard of living established during the marriage, 6) earning ability and needs of each parent, 7) tax consequences, 8) any other factors that impact the fairness of the child support award, Anytime there is a material change in circumstnaces, the court may revisit and adjust child support accordingly. If you believe you have special circumstances affecting your child support case, you should contact an attorney to discuss your options.

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