The Golden Rules of Divorce and Custody
We all know the Golden Rule: treat others the way you want them to treat you. This series examines ways in which applying the Golden Rule may help you not just in life, but in your divorce or custody case.
Golden Rule #1: Don't say or write anything that you don't want to hear repeated in court.
Do you really want a judge to hear the names you called your ex-husband because he showed up ten minutes late for soccer practice and he forgot your child's uniform? What about having to read out loud in a courtroom the exchange you had with your teenage daughter on Facebook? You know, the part when you said you couldn't stand dealing with her mother anymore because she is a liar and a cheat and you hope your daughter doesn't turn out to be anything like her?
Your words can and most likely will come back to haunt you. What you say or write may have greater consequences than you think. Of course it can be embarrassing to have our less-than-shining moments replayed for others. When you're involved in a custody or visitation case, however, you need to be especially aware of what your words say about you.
One of the factors a Virginia judge must consider in a custody case is the willingness of each parent to "actively support the child's contact and relationship with the other parent." Another is the "willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes" about the child.
One of your goals in a custody case is probably to convince the judge that you are a mature adult, able and willing to handle all situations your child encounters. Guess what? Your ex is going to be right there in the majority of those situations. How are you going to handle the conflicts? With perfection? Probably not. How about with grace? If you want a judge to grant you custody, acting maturely and not letting your emotions get the best of you should almost certainly be the way you live your daily life as well.
If your first impulse after an argument over which summer sport your child should play is to send a vicious, nasty email castigating your ex for his or her every fault -- both now and in the past -- think again. It's not very productive, and it's definitely not going to demonstrate your ability to cooperate in and resolve disputes.
The golden rule of treating others the way you would want to be treated applies in life and in the courtroom. But the rules of evidence and the time constraints of the judicial system don't allow very much room for context, and one nasty email has a way of lingering long after the angry feelings have subsided and getting blown far out of proportion.
How to Get a Divorce in Virginia
In Virginia, divorces are granted based on fault or separation. Unless there is a written agreement, a court needs to make decisions about division of assets, distribution of debt, spousal support, child custody, visitation, and child support.
Determine the type of divorce you want to file.
You need to know whether or not there is a basis for granting a divorce based on fault. Some of the fault grounds for a divorce in Virginia are adultery, cruelty, desertion, and constructive desertion. Virginia courts also grant divorces based on six months separation if there are no minor children and you have a written separation or property settlement agreement resolving all issues in your marriage. You may file after twelve months of separation regardless of whether you have a written separation or property settlement agreement. However, even if you have a written agreement, if you have minor children you must wait until twelve months of separation have elapsed if you wish to file for divorce based on separation grounds.
If you can, sign an agreement with your spouse.
To prevent having to let the courts decide these issues, you and your spouse need to agree how to resolve all the issues that arise out of your marriage. This is often easier said than done, however. The potential to overlook an asset, entitlement, or benefit is great. Lawyers frequently use a formal process called discovery to ensure you have all available information about debts and assets before you make any decisions about dividing property such as real estate, bank accounts, retirement or pension plans, jewelry, household furnishings, and automobiles. You also need to determine how to distribute your debts, such as mortgages, home equity loans or lines of credits, student loans, and credit card bills. Some retirement plans require special court orders to divide them, even when there is an agreement. You must also decide whether or not one spouse will pay spousal support (sometimes called alimony). Spousal support awards can be temporary (rehabilitative), or long term (permanent or indefinite). Additionally, you must determine what effect, if any, remarriage or living together with a significant other should have on the obligation to make support payments. Before making any decisions about these matters, you should consult with a skilled lawyer because these agreements are almost always permanent and binding.
If you can't agree, ask the court for an equitable distribution and support hearing.
Virginia is an equitable distribution state. There is no set formula to determine how to divide up a couple's assets and liabilities as part of a divorce. Instead, the courts must consider the factors set out in the Code of Virginia before it divides property. Courts look at when and how property and debts were acquired. They determine whether property is marital, separate, or part-marital/part-separate, assign the property a value, and then determine how to divide it. You will need to show evidence about all your property and any of your spouse's property that is not jointly titled. You may need to use discovery tools to ensure you have all relevant information before going to trial. Spousal support is determined in Virginia after consideration of a variety of factors that are set out in the Code of Virginia. Education, work experience, age, health, and duration of the marriage are just some of the factors the court must consider when making a spousal support award.
Consider hiring an expert witness.
Often, real estate appraisers and other experts are used to help determine the value of real property or a business. In a support hearing, an expert can testify about the earning potential of you or your spouse. Experts can be especially useful when a spouse is voluntarily unemployed or voluntarily underemployed. These professionals can be a valuable part of the divorce process. In some cases, they are absolutely necessary. Your lawyer can help you determine when you might need an expert. Even if you do not end up in court, hiring an expert to determine the value of your house, for example, may give you and your spouse the information you need to reach an agreement.
Decide (or ask the court to decide) the new arrangements for your children.
You and your spouse must agree on whether you will have joint legal custody or whether one of you will have sole legal custody. When parents share legal custody, they both have input into the decision-making, such as where children will attend school and what type of medical treatment they will receive. You and your spouse must also decide where the children will live (physical custody). If you and your spouse agree on the visitation schedule for the non-custodial parent, you can ask the court to approve that arrangement. If you and your spouse can't agree, Virginia courts make these decisions for you after considering evidence about a list of factors in the Code of Virginia, focusing primarily on what is in the best interests of the children. They must then attempt to ensure that children will be able to spend time with both parents, unless there is a good reason to limit their interaction.
Determine child support.
You and your spouse can agree on an appropriate amount of child support that should be paid to the parent with physical custody. The Code of Virginia contains a table that is used to calculate child support obligations based on the number of children in the household and the incomes of their parents. Adjustments are made to take into account whether a parent who pays support must also support other children, usually by court order or contract. Medical insurance for the children and work-related childcare costs are also used to determine a guideline child support amount. The court can deviate from this presumptive amount of child support. A common reason for a court to deviate from the presumptive child support amount is if a child has extraordinary medical expenses due to serious illness or disability. The number of days of visitation the non-custodial parent has can have an impact on the amount of child support to be paid.
