What is Family Law?

What is Family Law?

Our firm focuses primarily on the practice areas of family law and estate planning, but often non-lawyers will ask “what is ‘family law’ anyway?” It encompasses a broad spectrum of practice areas from divorce to custody and everything in between.

Divorce

The most frequent type of family law case is divorce, in which married people seek to divide assets and liabilities and determine custody, visitation, and support of minor children. Some cases are contested, meaning the case has to be heard and decided by a judge, while others are uncontested, meaning the parties are able to work out an agreement without court intervention. If a case is uncontested, it can be finalized relatively quickly once the separation period requirement is met. Parties with no minor children who sign a separation agreement must be separated for 6 months prior to filing for divorce. Parties with minor children must be separated for 1 year prior to filing for divorce.

Annulments

In very rare situations, married couples may be eligible for an annulment rather than a divorce. In order to be eligible for an annulment, a spouse must be able to prove one of the following legal grounds: bigamy, incest, incompetence, fraud, impotence, underage, felony, duress, sham marriage, or pregnancy by another person within 10 months of the marriage. Because the grounds are so limited, most marriages are terminated by divorce rather than annulment. Child Custody & Visitation In cases where parties have children together but are not married, they can petition the court to set custody and visitation arrangements for the minor children. Custody determinations will include legal custody, meaning who can make legal decisions regarding the child, as well as physical custody, meaning where the child lives the majority of the time. Custody and visitation cases can be modified in the future when there is a material change in circumstances. A visitation matter will determine where, when, and for how long the child spends time with each parent. In most circumstances where parents live close to one another, the child will spend time with each parent during the week. If parents live further apart, the court may order more visitation time be spent during breaks from school rather than on a weekly basis. Part of the visitation order should include how transportation will be accommodated and who is responsible for payment of any travel costs.

Child Support

Child support can be set in a divorce matter, or in a case where the parties were not married, it can be determined in the juvenile and domestic relations court as a separate matter. Even if parties have an agreement regarding child support, the court will usually apply the statutory guidelines for support. In some cases, there is a good reason to deviate from the guideline amount of child support. If a parent is voluntarily unemployed or underemployed, for example, the court may order a higher amount of support than would be paid under the guidelines. If one parent moves far away and visitation will require air travel, the court can consider the costs of accommodating visitation into a deviation from the support guidelines.

Paternity

If a child’s parentage is in question or has not yet been determined, the court will order genetic testing to determine paternity. Opening a paternity matter enables the parties to petition for other related matters, such as custody, visitation, and child support. Once paternity is determined, both parents have an equal right to the child unless and until the court makes a custody order.

Spousal Support or Separate Maintenance

In some situations, parties may not have a ground for divorce yet, but are in need of financial support. They can petition for spousal support through the juvenile court, or make a suit for separate maintenance in the circuit court. Both of these matters can be determined without a divorce case and without making any other determination regarding division of the parties’ assets or liabilities. Some spouses prefer to avoid filing for divorce for religious reasons. In such a situation, they can still petition and enforce a court order for support from their spouse.

Prenuptial Agreements

Parties can make agreements prior to marriage that determine the legal rights between them. These agreements can include terms for how the parties may pursue a divorce, what remedies may be sought, and limitations on financial awards. If a spouse has substantial pre-marital assets, a separate business interest, or other property, it’s advisable to have a prenuptial agreement in place. A prenuptial agreement can also modify each spouse’s right to inherit from the other and will often be drafted alongside other estate planning documents.

About Melone Law, P.C.

Melone Law, P.C. is a family and estate firm serving Virginia Beach and Northern Virginia. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about estate planning, contact our Reston office today at 703.995.9900 or Virginia Beach at 757.296.0580 or visit our website: www.MeloneLawPC.com.

Divorce During COVID-19

Divorce During COVID

For couples that were facing separation and divorce before the stay-at-home order, Executive Order 55 added complication to the separation process. In order for couples to divorce based on separation in Virginia, they must have been living separate and apart for 6 months or 1 year before filing, depending if they have minor children or not.

Separation

In Virginia, separation requires physical separation and can include time spent under the same roof as long as the parties are truly living separate and apart. It can be difficult to demonstrate separation to the court when parties are still living in the same home and acting as a family unit. Some factors that may help to show separation include separating financially, purchasing separate groceries, and living in separate areas of the home. During the current stay-at-home order, it may be difficult for couples to set strong boundaries in place to initiate or continue separation.

The Divorce Process

Many divorce cases can still move forward so long as they are completely uncontested, meaning the parties have reached an agreement regarding custody, visitation, support, asset division, debt division, and any other necessary terms from the relationship. It can be difficult for couples to unwind their shared interests in an equitable way on their own when there is so much emotion involved. For those that cannot reach an agreement, the next option is to file a divorce case and request the court make a temporary order while their case is awaiting trial. During the current court closure, these motions will not be heard unless there is an emergency involved. A party can still file their divorce and temporary motion, but they will not be able to get a ruling from the court for several weeks once they are able to set a hearing. This slowdown in the process can create a financial or other hardship for couples facing divorce. Deciding who is responsible for payment of joint expenses, setting temporary child or spousal support, and a temporary custody schedule is already complicated enough without adding limited court availability.

Alternative Dispute Resolution

For those that may be close to reaching an agreement, or that just need some guidance in the process, mediation may be an option to move their case forward. Mediation is the process of negotiating a case with the assistance of a neutral third party, called a mediator. Most mediators are retired judges or attorneys who have decades of experience. Each party usually has their own representation and their own attorney during the mediation process. Mediators all have their own process, but most frequently the parties all meet together before splitting into separate rooms with the mediator traveling back and forth making offers. The mediator cannot offer either party legal advice, which is why bringing your own attorney can make all the difference in ensuring a fair outcome. The mediator’s job is to find a middle ground between each party’s position and facilitate the negotiations to a meeting point. Most mediators take one issue at a time and work to resolve each one, creating a full written agreement at the end of the session. Mediation can have a number of benefits over litigation so long as both parties are willing to participate in the process. Some benefits of mediation include:
  1. Creative Solutions: The courts are limited in following judicial precedence to make orders. In mediation, couples can reach more creative, flexible, agreements that would not be ordered by a court.
  2. Save Embarrassment: Any matter in the Circuit Court is public record. That means everything in the court file and everything said during a hearing could be overheard or used for other reasons in the future. For cases involving sensitive issues, parties may benefit from keeping the process private through mediation.
  3. Save Time and Cost: Parties that reach an agreement in mediation can move forward with their case once they have a signed agreement. The court will still process uncontested divorces. An uncontested divorce will be substantially less expensive than a contested case to finalize as well.
If you are facing separation and divorce during COVID-19, it may be best to seek legal counsel now to discuss your options in detail before taking any action. You want to ensure your rights are protected and your case will be successful once it can move forward.

About Melone Law, P.C.

Melone Law, P.C. is a family and estate firm serving Virginia Beach and Northern Virginia. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about estate planning, contact our Reston office today at 703.995.9900 or Virginia Beach at 757.296.0580 or visit our website: www.MeloneLawPC.com.

Custody Exchanges During COVID-19

In Executive Order 55, Governor Northam issued a stay-at-home order for all non-essential purposes and limited social gatherings to less than 10 people in Virginia. The order specifically addressed child custody and visitation, stating that individuals may “leave their residence for purposes of … traveling required by court order or to facilitate custody, visitation, or child care.”

Regular Visitation

If you have an order in place for a visitation schedule, you should continue to abide by it to the extent possible. When arranging for custodial exchanges, all recommended CDC guidelines should be followed. For those that ordinarily exchange their children in a public location, parents should use caution and select a location that will minimize contact with the public. Both parents should use every precaution to make sure the child’s belongings have been and remain properly sanitized before entering the house. If you do not yet have a custody order in place, you can still travel in order to facilitate visitation time for the other parent. You should continue to follow the status quo for the child, as their schedule has likely already been interrupted.

When Can Visitation be Denied?

In certain situations, such as those involving long-distance travel or high-risk employment, it may be reasonable to modify or suspend visitation. Remember to communicate clearly with the other parent prior to making any change to the custodial schedule. It’s best to document your communication or attempt at communication in a written form such as text or email. Remember that any violation of the court’s current order can be a basis for contempt later on. With that in mind, you should take whatever action is necessary to ensure the child is best protected from any risk of harm. If visitation requires air travel or lengthy car travel, it may not be reasonable to subject the child or the parents to all of the potential exposures along the way. Parents can work to find alternative travel dates in the summer or fall to make up for lost time. If parents can agree to a change, they should document it in writing. If a parent is employed in a high-risk industry, they need to take every precaution to ensure they are not exposing the child to any unnecessary risk. Those in the healthcare field have been recommended to leave their shoes outside, shower, and wash all clothing and everything else at the end of their shift before having any contact with family members or any household items. If a child is at high-risk of infection or has significant underlying health problems, it may be necessary to suspend in-person visitation with a parent in a high-risk industry. You should be sure to provide phone, Skype, or Facetime availability for the child with the other parent. If the other parent does not agree to a suspension of visitation, it may be best to file a request for an emergency modification with the court.

Enforcement Issues

For those attempting to enforce their current orders or make changes to their visitation schedule, their options will be limited for a few weeks. On March 27, 2020, the Virginia Supreme Court extended its declaration of a judicial emergency and ordered the closure of its courts through April 26th. It’s likely that this deadline will be extended further into May. Some local courts have already announced closures extending into early May. As a result, only those custody matters that qualify as an emergency can be brought into court for a hearing. Emergency matters are those where the child’s health, safety, or welfare is at risk of immediate harm or threat of immediate harm. The child must be present in the Commonwealth of Virginia in order for the court to take jurisdiction. Emergency jurisdiction is only temporary until the child’s home state can act. In an emergency case the court can order custody be granted to any interested party, including extended family members, on a temporary basis to ensure the child’s safety.

Melone Law, P.C.

While this is an extremely uncertain time it’s important to continue following any orders or agreements you have in place. Eventually, the court will resume its normal schedule and you don’t want to face contempt for violating any court orders. If you have specific questions about your case, contact one of the attorneys at Melone Law PC in our Northern Virginia office at 703-995-9900 or Virginia Beach at 757-296-0580.  

Is Mediation Right for My Case?

Is Mediation Right for My Case? 

The divorce process can be unfamiliar, stressful, and painful during an already difficult time in your life. Facing the legal system for the first time while dealing with personal affairs can add complication. Cases that go through litigation often take months, or even years before they are resolved. Along the way are numerous motions, exchanges of documents, investigations, and lots of back and forth between attorneys. The system is means to be adversarial, which can make it difficult, if not impossible, for parties to continue to work together to co-parent their children or deal with joint assets or other family affairs as necessary. 

Most parties end up settling their divorce case before they ever go to trial whether it’s through mediation, negotiation, or another alternative dispute resolution effort. Parties who see the potential of mediation can benefit financially and emotionally from resolving their case more quickly and fairly than it may end up in court. 

What is Mediation?

Mediation is the process of negotiating a case with the assistance of a neutral third party, called a mediator. Most mediators are retired judges or attorneys who have decades of experience. Each party usually has their own representation and their own attorney during the mediation process. Mediators all have their own process, but most frequently the parties all meet together before splitting into separate rooms with the mediator traveling back and forth making offers. 

The mediator cannot offer either party legal advice, which is why bringing your own attorney can make all the difference in ensuring a fair outcome. The mediator’s job is to find a middle ground between each party’s position and facilitate the negotiations to a meeting point. Most mediators take one issue at a time and work to resolve each one, creating a full written agreement at the end of the session. 

Mediation can have a number of benefits over litigation so long as both parties are willing to participate in the process. 

Creative Solutions

In court everything is left in the hands of a judge, who doesn’t know the whole history of your relationship, your family, or what’s best overall for your situation. Judges are limited to following the relevant case law and statutes, and aren’t able to use creative solutions to most problems. Judges can only consider the evidence before them, meaning that hearsay or other evidence may be properly excluded from consideration. Mediators, on the other hand, can help parties find solutions that work for them, even if they wouldn’t be ordered in court. Mediators can hear all kinds of evidence, including evidence that may not be admissible in a trial as hearsay. Parties that reach a resolution through mediation are more likely to follow through on their obligations, since they found the terms agreeable to begin with. 

In cases involving custody, flexible solutions can make all the difference in the parties’ ability to co-parent moving forward. Courts offer more traditional visitation schedules, meaning one party usually gets alternate weekends and a midweek evening visitation. That schedule is not ideal for most families, especially where parents have been sharing custodial responsibilities equally. Agreements made outside of court offer both parents more time and flexibility, which can make co-parenting together easier after the case is over.   

Save Embarrassment

Everything filed in court is a public record, and absent special circumstances, anyone can watch a trial in a Virginia Circuit Court. Usually the circumstances leading to a divorce are quite private, and can be embarrassing, which can motivate a party toward settlement. 

The grounds for divorce in Virginia are limited to cruelty, desertion, adultery, felony conviction, or separation. Contentious cases will involve detailing private, painful events from the parties’ history in order to obtain a divorce. Mediation offers confidentiality for both sides while still offering an opportunity for each party to share their story. 

Save Time

Parties that want a quicker resolution of their case can benefit from mediation. In a litigated case, there are certain waiting periods and filings that are required before hearing dates can be set. Depending on the court’s availability, a hearing may not be scheduled for several months, leaving the parties in limbo in the meantime. Many divorce cases take at least a year before they are set for a trial, which can create financial and emotional stress on both sides. 

Save Costs 

On it’s face, it would appear mediation is expensive. Mediators don’t work for free, and often have comparable or higher fees than most attorneys. Having each side hire their own attorney and covering the cost of the mediator would appear more expensive than going to court, however, in most cases it is substantially cheaper. 

Going through mediation means skipping a lot of the procedure, and accompanying attorney’s fees, that go into most cases. One of the most expensive processes is discovery, where parties request and exchange financial and other documents that may be relevant to their case. By going through mediation, evidence can be offered and exchanged informally. 

Preparing and conducting a trial is a huge expense. Having an attorney spend hours of preparation and ensuring that all evidence is presented properly can mean serving subpoenas, bringing in (and paying for) experts to testify, along with preparing and researching the relevant case law.

Consider Mediation

Divorce is an emotional time and it’s easy to make mistakes that may come back to haunt you in the future. Keep a level head and consider all of the options available to you. Consult your attorney and don’t be afraid to ask questions.  Being thorough now will make your life much easier after the divorce is final. 

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Virginia Beach and Reston.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients.

We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about divorce, separation agreements, and our family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com

We’re Separating… Do I Need a Parenting Plan in Virginia?

A parenting plan is a written agreement between parents who are divorcing, or maybe have never been married but no longer wish to live together, that outlines the responsibilities and expectations for custody, visitation, financial obligations, and other parenting issues that may be specific to your situation. Though often included as part of a separation agreement, a parenting plan is not a requirement for separation or divorce in Virginia.  An experienced Virginia family law attorney can help you put a parenting plan together that is fair, covers the specific needs of both parents and the minor children, resolves problems, and avoids bitter and expensive custody disputes.  A parenting plan also allows you to avoid the scenario in which a judge makes decisions for you.  If you can work through these issues now, you can avoid time-consuming and costly litigation in the future.  It may also help you maintain a better relationship with your children’s other parent.  All parenting plans should take into consideration:
  • The best interests of the children
  • The importance of consistency in your children’s lives in both parents’ homes, and maintaining scheduled activities, like sports, recitals, school activities, and time with friends.
  • Keeping the lives of your children as normal as possible during a time of fear and change, going forward.
  • The continued healthy development of the children.

What is included in a parenting plan?

At the very least a parenting should outline the following in as much detail as possible:
  1. Legal custody – Who has the responsibility to make decisions for your children? This includes major decisions about health care, religion, vaccinations, and education, but also can include other issues like recreation or ear piercing.  Legal custody can be joint (both parents have the authority to make decisions) or sole (only one parent has the authority to make decisions.)  If a parent has sole custody, the plan should also specify what legal issues the other parent will be advised or consulted about.
  2. Physical custody – Where is the child’s primary residence? Again, physical custody can be sole or joint.
  3. Visitation – When and how much time will the child spend with the noncustodial parent? This includes the division of holidays, vacation times, summers, and special events. A parenting plan should include a schedule with calendar dates and times and specific drop off/pick up arrangements.  It may also include transportation costs if parents do not live close to each other.
  4. Changes/delays – How will a parent be notified if there is a change to the visitation schedule? For instance, if your child has a sleep-over at a friend’s house during visitation.
  5. Financial obligations – Who is responsible for which expenses of raising a child? This includes child support, childcare costs, medical care and health insurance, school tuition, college, music lessons, extra-curricular activity expenses, etc.
  6. Communication – How will the parents communicate with each other and with their children? How will they resolve conflicts and disputes?  This includes detailing how and when new significant others should be introduced into the lives of your children.
  7. Modifications to the plan – What happens to the parenting plan in case of remarriage, income increases or decreases, or relocation? The parties should include procedures for modifying or reevaluating the plan if/when circumstances change.  It is important that the agreement be both durable and flexible so that it can accommodate change when needed.
A Virginia parenting plan should allow both parents to maintain an active role in the lives of their children. It should also provide both parents with a clear understanding of their rights and obligations after the divorce.  It is specific to your unique situation and tailored to meet the needs of both parents and children.  If parents can’t reach an agreement on a parenting plan, the court will reach one for them.  In doing so, the judge, by law, must consider only the needs and best interests of the children.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about parenting plans, separation agreements, and family law, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Working Through the Unique Issues of a Grey Divorce

Even though the U.S. divorce rate has pretty much leveled off and even decreased over the past two to three decades, the divorce rate for couples over 50 years of age has increased dramatically and now accounts for over 25% of all divorces.  There are many factors that may help explain the rise in “grey divorce.”  Some likely reasons include: Growing apart – After a long marriage, couples feel they don’t have much in common anymore and have different interests and goals.  People expect more of marriage today.  Sticking it out in an unfulfilling marriage, just for the sake of being married, has become passe‘. Improved health and longer life expectancy – People are living much longer than they did even 50 years ago, and they’re healthier and active.  A divorce at 55 or 60 isn’t the end.  It’s often the beginning of a new and interesting chapter of one’s life and seniors are ready and willing to take action to pursue a more fulfilling life. According to data compiled by the Social Security Administration as of 2016:
  • A man reaching age 65 today can expect to live, on average, until age 84.3.
  • A woman turning age 65 today can expect to live, on average, until age 86.6.
  • About one out of every four 65-year-olds today will live past age 90.
  • One out of 10 will live past age 95.
Opportunities to Date – Divorced seniors are entering the dating scene at unprecedented numbers, looking for new opportunities to socialize and meet new people who share their interests.  Online dating is surging in popularity for those over 50. Women are financially independent – Women over the last 20-30 years have been in the workforce and led more independent lives.  They’ve had or may still have a career, other than motherhood, and don’t have to rely on their husbands for money.  Husbands are no longer the sole breadwinner in the family.  Women have much more financial stability as they age.  They have good salaries, retirement accounts, pensions, 401k accounts and are much more able financially to leave an unsatisfying marriage.

Critical issues to consider in the Grey Divorce

When younger couples divorce, the main issues are usually child custody and support, visitation, spousal support (alimony), and division of property.  No matter why you’re seeking a divorce later in life, the fact is the longer a couple is married, the more complex the issues surrounding their divorce will be.  The division of marital assets can be significantly more complex and complicated during divorce proceedings.  The Commonwealth of Virginia is an equitable distribution state.  That does not mean property is split 50/50.  Equitable means fair, not even.  It is important that you speak with an experienced Virginia family law attorney to ensure that your divorce gives you the new life you are planning for.  Here are the issues and financial challenges a knowledgeable Virginia divorce attorney can work through with you:
  1. Income and spousal support: How will each spouse maintain an income stream that meets their circumstances?  Will it require rejoining the workforce, delaying retirement, paying or receiving spousal support, or splitting a fixed income, like a pension, if you’re retired?
  2. Division of property: If you’ve been married 20 years or more, you probably have significant assets, both marital and separate property that will need to be divided.  It may be difficult to define which is separate property after a long marriage.  There are many considerations that are unique to a grey divorce when dividing assets, such as the length of the marriage, if one or both parties are retired or close to retirement, when and how assets were obtained, pensions and retirement accounts, inheritances, and much more.
  3. Social Security: In some circumstances, a spouse is entitled to benefits based on his/her spouse’s social security.  This depends on the duration of the marriage and each spouse’s income. Getting remarried will stop any spousal social security benefits.
  4. Life insurance: Anyone paying spousal support is required to have a life insurance policy in the amount and for the term that is equal to the amount and duration of the spousal support decreed in the divorce.  This can impact seniors, as even term insurance policies can be extremely and sometimes, prohibitively expensive.
  5. Long-term considerations: There are many issues surrounding getting older, including competency, long-term care, end of life care, and preparations for burial or cremation. This should be considered in a grey divorce. It is important to update your estate plan both during and after the divorce to protect your estate and your wishes.
As you can see, divorce issues for older couples are far more complex than issues a young or newly married couple face.  If you are considering divorce as a senior citizen, it is important that you speak with an experienced Virginia family law attorney with expertise in senior divorces.  Together, you and your attorney will carefully plan and prepare for all eventualities to ensure that you have the bright future you desire.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about a grey divorce and family law, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Can I Get an Annulment in Virginia?

The simple answer is yes, but in very limited situations.  In the Commonwealth of Virginia, marriage is considered a contract between two people, and with it come obligations and certain legal rights.  Unlike a divorce, which is the dissolution of a valid marriage, an annulment is the end of an invalid marriage.  In other words, when an annulment is granted, it is as if the marriage never existed.  This rarely applies to most marriages.  The court only grants an annulment when there is a legal reason why the marriage shouldn’t have existed at all, which leaves divorce as the only legal means to end most marriages.

Grounds for an annulment

Under Virginia law, a spouse needs a legal ground to annul the marriage.  The couple cannot have the marriage annulled if they have been married for at least 2 years.  The following are the specific legal grounds for an annulment.
  • The marriage was not properly solemnized per the laws of the Commonwealth of Virginia.
  • One spouse was a bigamist and already married at the time of the marriage, and that marriage had/has not been dissolved.
  • One spouse was impotent at the time of the marriage and unable to engage in sexual relations.
  • One spouse was incompetent and wasn’t mentally able to understand and consent to marriage.
  • The spouses were related by blood and were closer than first cousins.
  • The wife was pregnant at the time of the marriage by someone other than her husband.
  • The husband fathered a child with a woman other than his wife within 10 months of the marriage.
  • One spouse was under the legal age to be married in Virginia. The legal age for marriage in Virginia is 18.  But marriage is legal at 16 with the consent of a parent or guardian or if the girl is pregnant.  A girl 14 or older may marry to prevent a statutory rape conviction.
  • One spouse committed fraud and the marriage took place because of deception. Grounds for fraud include lying about venereal disease, lying about religious beliefs, and hiding a pregnancy by another person.  Lying about your age, wealth, health conditions, and prior marriages, though fraud, are not considered to be sufficient grounds for annulment.
  • One spouse only entered into marriage because of duress, force, or fear of serious harm.
  • One spouse was a convicted felon.
  • One spouse was a prostitute without the knowledge of the other spouse.
  • The marriage was a sham. The spouses married for reasons other than the normal purposes of marriage, such as to gain immigration status.
If one or more of the grounds for annulment is not met, then the marriage must end through divorce proceedings.  Even if one party thinks they have grounds for an annulment, there is no guarantee that a judge will agree and grant one.  It is best to consult with a family law attorney to understand the grounds, process, and if this is the best way for you to proceed given your specific situation.

The difference between divorce and annulment

There are several differences and implications to annulling your marriage versus a divorce.  Unlike a divorce, the judge has no authority to make decisions about the division of marital property, assets, debts, or to order spousal support.  But, the court still has jurisdiction over child custody, visitation, and support.  Children from annulled marriages are considered legitimate, and like in a divorce, must be financially supported by both their parents. Even in the 21st century, when divorce no longer carries the stigma it once did, for some, an annulment is preferable for religious or other personal reasons.  In some cases, a person files for an annulment for financial reasons.  Unlike a divorce, if the marriage was never valid, the judge can’t make decisions about property division or spousal support.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about annulment and divorce, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

I’m Deploying! How are My Custodial and Visitation Rights Affected?

The Commonwealth of Virginia has the second largest military population in the United States.  In 2008, the legislature enacted the Virginia Military Parents Equal Protection Act, which addresses the concerns of deploying parents regarding custodial and visitation decisions. The Virginia Military Parents Equal Protection Act defines who is considered to be a deploying parent, including not only active duty but activated reserve units, and grants special rights to active duty service members with respect to custody and visitation. The Act defines a deploying parent as “a parent of a child under the age of 18 whose parental rights have not been terminated by a court of competent jurisdiction or a guardian of a child under the age of 18 who is deployed or who has received written orders to deploy with the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof.” Military personnel are relocated and deployed throughout their career.  In many cases, military personnel, both enlisted and officers, are unable to actively parent their children because they are deployed in the service of our country. When this happens, custody orders and/or visitation plans may be thrown into turmoil.  The Virginia Military Parents Equal Protection Act provides legal protection to members of the military in child custody and visitation issues.  Simply put, you can’t use the fact that a parent is in the military and subject to deployment as an argument for changing the child custody and/or visitation order.

The Act allows any deploying parent to:

  • Temporarily modify the current custody and/or visitation order to ensure that the service member’s deployment status is clearly stated as the reason for a change in the order and to ensure that the matter is re-heard within 30 days of the service member’s return from deployment
  • Designate his or her physical visitation time in the existing order to a family member with whom the child has a close relationship, including the spouse (stepparent) of the deploying parent, aunts, uncles, grandparents, etc. The delegation of these rights is temporary and do not create a separate visitation right for the relative.
  • Order the non-deploying parent to facilitate phone calls, Skype, and email between the child or children and the deployed parent. The court will also require the deploying parent to provide reasonable notice to the other parent about his or her leave schedule and require the non-deploying parent to reasonably accommodate that leave during deployment.
  • Grants the deploying parent the right to file a petition with the court which specifically identifies the service member as a parent about to deploy and requires the court to place the deploying service member’s petitions before other matters on the court’s docket.
  • Allows the court to accommodate any deploying parent who is unable to appear in person due to pre-deployment training or actual deployment by allowing that parent to testify by telephone or Skype.
All orders of the court based upon a deployment are temporary and modifiable upon the service member’s return.  When the deploying parent returns, the court will give that parent priority on its docket to modify the custody or visitation arrangement again. If the non-deploying parent does not want the order that existed before the deployment to be reinstated, it will be his or her burden to show that the prior arrangement is no longer in the child’s best interests.

If you are a deploying service member:

If you’re anticipating a possible upcoming deployment, the most important thing you can do is establish a custody and visitation arrangement immediately. It is probable that you’ll be relocated again and again throughout your career.  Consult a Virginia family law attorney, experienced in military deployments, about a custody and visitation arrangement. If you let your non-military former spouse have custody of your child while you deploy, without establishing a custody and visitation schedule before you go, your former spouse could move to another state and establish residency there for your child.  That state would then have jurisdiction over custody and visitation. Virginia is particularly sympathetic to military service members, so you’ll want to keep your custody case here, if at all possible. Establishing a custody and visitation arrangement will help ensure that you can use the protection provided by the Military Parents Equal Protection Act. After you return, your custody and visitation arrangement will automatically revert to whatever it was before you left.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about military deployment, custody, and visitation, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Virginia Child Custody and Visitation FAQs

After a divorce or the dissolution of a relationship, there are decisions to make regarding custody and visitation of minor children. Who will be the primary caregiver of the child? Will we share both legal and physical custody? What will the visitation rights be? The courts will have their own questions as well when making decisions regarding child custody and visitation. Take a look these FAQs and their answers to better understand the process.

What custody/visitation rights do parents in Virginia have before any court orders have been entered?

In the absence of a court order, both parents have equal rights to the physical custody of their minor children and to make decisions on behalf of their children. The parties could agree on how to handle custody and visitation prior to the court hearing and have their agreement entered as a consent order. Alternatively, either party could file a motion for pendente lite relief and ask the court to enter a temporary order for custody and visitation to remain in effect until the court makes a final determination.

How do judges make decisions about child custody and visitation?

Judges make child custody and visitation decisions based on the child’s best interests. Judges consider a variety of factors they believe to be important to determining the child’s best interests when making a decision.  One important factor to the court in establishing most custody arrangements is which parent will be the most likely to see to it that the other parent remains a strong part of the child’s life.

What factors might be considered when awarding custody and visitation?

Below you’ll find an extensive but not exhaustive list of potential factors. Keep in mind that the court may take into consideration any factors they believe to be relevant to the case and in the best interests of the child.
  • Who is the current primary caregiver
  • Living arrangements for each parent
  • Which parent is better able financially to take care of the child
  • What is the psychological and physical fitness of each parent
  • What is the child’s preference
  • Age and health of each parent
  • Age, health, and gender of the child
  • Religious views
  • How close the parents live to each other
  • How close they live to members of the child’s extended family
  • Which parent lives closest to the child’s school and social circle
  • Length of separation and where the child has been living
  • Any prior abandonment or surrender of custody issues

What are the different types of court ordered custody?

There are many different types of court ordered custody to be aware of:
  • Legal custody: This type of custody includes rights and obligations to make decisions for the child regarding health care, education, religion, and other important matters.
  • Physical custody: As it sounds, physical custody encompasses the rights and obligations to care for the child physically
  • Temporary custody: This type of custody is granted while parents wait for the hearing. Also called Pendente Lite custody, it is made based on the child’s best interests and does not determine the final custody decision.
  • Sole custody: The child has only one residence with one of the parents. Parents may receive sole physical custody, sole legal custody or both.
  • Split custody: When 2 or more children are involved, one child lives with one parent and the other child lives with another parent.
  • Joint legal custody: In this type of custody, both parents can make decisions with the same amount of legal rights and obligations.
  • Shared physical custody: Parents share the physical custody of the child, alternating who cares for the child during set time periods.

How much say does a child have in a custody decision?

A child under the age of 18, who has not been legally emancipated, cannot choose which parent to live with in Virginia. That decision rests with the child’s parents or, if a custody order has been entered, then with the court. If a child is old enough to make a rational decision, the court may take the reasons for their preference into consideration. This scenario is typically the case with older, more mature children.

Can third parties and grandparents be granted custody?

The short answer is yes but rarely. The biological parents of the child bear the presumptive right to custody. Grandparents, other relatives, and other third parties may be considered if both parents are unfit.

I’m the mother. Am I guaranteed custody?

No. In fact, judges and courts are not permitted to give preference to one gender over the other when making a custody or visitation decision. The best interests of the child always come first. Despite the abolishment of legal preference to granting maternal custody, you may still find judges who are biased and prefer to award females custody.

Do I need to go to court to get custody and visitation of my child?

The simple answer is no, but it is best for final decisions of the parties to be reduced to a court order for clarity and compliance.  If you reach an agreement before beginning the proceedings, it will typically make for a smoother and easier process and custody and visitation can be determined through a formal signed agreement. This agreement is then entered into a final order. Parties can retain counsel to negotiate or review agreements and can also use other services, such as mediation. While custody matters are personal and in the best case decided outside a courtroom, legal services are useful in helping the parties reach a final agreement which can be incorporated into an order.

My spouse fails to pay ordered child support.  Can I deny him/her visitation until he/she pays?

No. Other remedies exist to get a non-paying party to comply with paying child support. Withholding visitation is not one of these remedies.

Is a custody or visitation award considered permanent?

No. The Virginia courts retain jurisdiction to review and modify all orders of custody and visitation.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about custody and visitation rights, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Military Divorce in Virginia: What You Need To Know

Active duty military service members, as well as their families, make large sacrifices in service to their country. The long separations, frequent relocations, and the challenges of active duty may stress and take a toll on these marriages.  A Virginia military divorce creates several unique issues as compared to the typical civilian divorce and can be impacted by both state and federal laws. While all divorces, both military and civilian, in the Commonwealth of Virginia, are governed by Virginia law there are benefits and unique circumstances that pertain exclusively to a military divorce.  For that reason, it is important that anyone in a military family seeking a divorce consult with a Virginia divorce attorney with experience handling military divorces.

Residency Requirements:

In Virginia, the grounds for a military divorce are the same as for a civilian divorce. Military divorce filing requirements are as follows:
  • You or your spouse must reside in Virginia
  • You or your spouse must be stationed in Virginia
To establish residency, Virginia requires one or both spouses to live in Virginia for at least six months, with the intention of staying indefinitely, before they can file for divorce. But the Commonwealth makes a specific exception to the “domicile” requirement for those serving in the military.  A service member meets the residency requirement as long as he/she has been stationed in Virginia for at least six months, regardless of their intent to stay.

Default Judgments:

Federal law protects active military members from being held in default when they are on duty and therefore cannot or fail to respond to a divorce action.  These laws were enacted to protect active military from being divorced without knowing it.  In Virginia, an active duty service member must be served in person. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action. Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Virginia court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter.  This is typically the case when the active member is serving in a war.  However, the right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Child support and spousal support:

Military spouses are often forced to delay career opportunities and education to focus on their families, leaving them jobless or under-employed. For this reason, child and spousal support are a major concern for divorcing military families. In Virginia, both child support and spousal support awards may not exceed 60% of a military member’s pay and allowances (housing, hazard pay, bonuses, and non-monetary compensation.) The normal Virginia child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Child custody:

In Virginia, all child custody cases decide what custody arrangement is in the best interest of the child. Military cases often involve many unique circumstances such as long deployments and frequent relocations. In these cases, judges often, but not always, assign primary physical custody to the non-military spouse. Although the Commonwealth of Virginia may have jurisdiction over your divorce case, it does not necessarily have jurisdiction in your child custody matter. These cases must be adjudicated in the state or country the child lives in most of the time. If a child lives abroad, child custody may be left up to the courts in the country in which he/she lives, even if the child is a U.S. citizen.

Marital property:

Virginia is an equitable property state, meaning marital assets are to be distributed fairly between the spouses. Fairly does not necessarily mean 50-50. The federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) which governs how military benefits, including military insurance, retirement, and survivor benefits are calculated and divided upon divorce. The extent to which these benefits can be allocated to ex-spouses depends on the length of the marriage, the length of the service member’s active duty, and the rules for each individual program. If you or your spouse is an active duty or retired military member, it is important to hire an experienced family law attorney that understands the unique issues and circumstances surrounding military divorces.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about military divorce, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

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