How long will it take before I'm divorced?

If you have filed for a divorce in Circuit Court and are unable to resolve disputes related to support, custody, property division, etc., you need to be prepared for a process that can take a minimum of 18-24 months.  Sounds like forever?  We know.  Unfortunately, it takes time to file and respond to pleadings, to gather information, to prepare for trial, to meet requirements of Court pretrial orders, to present your case, and to argue post-hearing motions.  And, if your spouse is difficult in providing information, then it can take longer.  Not what you want to hear when you are already anxious about getting thing over with.   So, try to think of the turtle. If you ever have the privilege of touring the United States Supreme Court, you will notice turtles everywhere (statutes, not real ones)-- they are there to represent the slow and deliberate pace of justice.

What happens if my spouse quits his job to avoid paying support?

 The court can consider not only the income that the paying parent actually receives, but the earning capacity of each parent as well in determining the amount of child support owed. If a parent is voluntarily unemployed or underemployed, the court has the power to impute income to that parent to calculate the child support owed. Voluntary underemployment could occur when a parent chooses to earn less income than they were previously earning or could earn. Voluntary unemployment could occur when a parent chooses not to pursue employment when they are able to work. -- By Heather Wheelock Winter, Associate at Hall & Hall

What do I need to do with my custody order if I moved to Virginia from another state?

Your child custody order from another state will be recognized in Virginia and the custody and visitation provisions can be enforced across state lines. To enforce or modify the child custody order, a parent should register the out-of-state order. To register the child custody order, a parent should contact the appropriate juvenile and domestic relations district court in Virginia with a request for registration and copies of the order. It is also possible to ask for expedited enforcement and temporary visitation in certain situations. Handling custody and visitation matters when parents live in different states or have a previous order from another state are complicated and it is advisable to seek the advice of an experienced attorney. -- By Heather Wheelock Winter, Associate at Hall & Hall

Parental rights and assisted conception: an interesting news story

In a recent case, the Virginia Court of Appeals affirmed the parental rights of a man whose son was conceived by using a turkey baster, finding that a turkey baser does not qualify as “medical technology” and therefore the assisted conception statute does not apply.

The Virginia assisted conception statute defines an “assisted conception” as:
    a pregnancy resulting from any intervening medical technology, whether in vivo or in vitro, which completely or partially replaces sexual intercourse as the means of conception. Such intervening medical technology includes, but is not limited to, conventional medical and surgical treatment as well as noncoital reproductive technology such as artificial insemination by donor, cryopreservation of gametes and embryos, in vitro fertilization, uterine embryo lavage, embryo transfer, gamete intrafallopian tube transfer, and low tubal ovum transfer.

Virginia Code § 20-158(A)(3) states that in an assisted conception scenario, a donor is “not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother.”

See the full article published by the Associated Press at:

http://www.roanoke.com/news/virginia/virginia-court-affirms-roanoke-dad-s-rights-in-turkey-baster/article_bbfeef9a-80b4-5406-a8e1-d6352883d5ad.html.

By Kari Jackson, Associate at Hall & Hall, PLC

Can I Terminate Spousal Support Based on My Ex-Spouse’s Living in a Same Sex Relationship?

Same-sex marriages that are valid under the law of any state are now recognized in Virginia and same-sex couples may now legally marry in Virginia. However, that recognition does not necessarily apply in all areas of family law.  In a recent Virginia Court of Appeals case, Luttrell v. Cucco (unpublished), an ex-husband tried to terminate his spousal support obligation to his former wife based on her cohabitation with another woman. Virginia law allows termination of spousal support when the spouse receiving the support has been “habitually cohabiting with another person in a relationship analogous to marriage.” Although Virginia now recognizes same-sex marriages, the prior case law defines “cohabiting” as between a man and woman. The Virginia Court of Appeals upheld the trial court’s ruling that same-sex couples cannot cohabit under the meaning of the termination of spousal support statute.   The Court went on to say that because the General Assembly has not addressed or altered the case law, the Court of Appeals was stuck with case law defining cohabitation as between a man and a woman who live together assuming duties normally associated with a marital relationship. This is an interesting example of where the law has not caught up with itself. -- By Heather Wheelock Winter, Associate at Hall & Hall

What do i need to do with my child support order if I moved to Virginia from another state?

Virginia will recognize your child support order from another state and can help collect support from a non-paying parent. A parent who has a child support award from another state who wants to enforce the order or modify the child support amount in Virginia should request to register the order in the proper juvenile and domestic relations district court, circuit court, or the Department of Social Services. The parent will need to fill out a standard form, certify the amount of back child support owed, if any, and provide various copies of the child support order. The parent who wants to enforce the child support order may also choose to have payments made to a state support enforcement agency, such as the Department of Child Support Enforcement. If the paying parent has moved away from Virginia, it may be necessary to seek a modification of the child support order in a different state. Because the process of registering, enforcing, and modifying an out of state child support order can be complicated and confusing, it is advisable to seek the advice of an experienced attorney. -- By Heather Wheelock Winter, Associate at Hall & Hall.

I want to retire; can I terminate my spousal support?

A paying spouse may be able to terminate or modify spousal support upon their retirement; it depends. Generally, unless the spousal support order or agreement says otherwise, to terminate or modify the spousal support award, the paying spouse must show (1) a material change of circumstances and (2) that the change justifies altering the amount of spousal support. It is possible that retirement may be a material change in circumstances; but the Court will want to know why is that person retiring at the specific time, how old is the person seeking to retire, does the payor have the ability to work, is retirement a voluntary choice. To justify terminating or modifying spousal support, the court would then look at the financial circumstances of both spouses, including each person’s earning potential. The court would also analyze certain factors like the parties’ assets, age, physical and mental health, and the length of the marriage. Although retirement may be a material change in circumstances, it is not always true that the retiring spouse is not able to pay spousal support post-retirement and the retiring spouse may or may not get relief from spousal support. These decisions are fact specific and it is important to discuss your situation with an attorney when you are considering retiring. -- By Heather Wheelock Winter, Associate at Hall & Hall.

Do I get credit for paying health insurance premiums in child support?

 Effective July 1, 2015, the law better clarifies how health insurance cost will be calculated for child support purposes.  When determining the amount of child support owed by a parent, the court takes into account the amount paid by either parent or stepparent to provide health care coverage for the child.  The amount taken into account is limited to the proportionate share for the child’s health coverage.  With more blended families in Virginia, it was important to better articulate how credit may be given where children other than those for whom support is owed are also covered by the health insurance.  The new law provides that the cost per person shall be determined by the following formula: [total cost of coverage] – [cost of individual coverage for policy holder] / [number of remaining persons covered by the policy]. -- Kari Jackson, Associate at Hall & Hall

Can I get child support for a child who is over 18?

Effective July 1, 2015, the law in Virginia will change to expand the ability of the parent of a child who is severely and permanently mentally or physically disabled may file for child support.  Specifically, this legislation will allow the parent of a child who meets certain statutory requirements to file for child support even after the child has reached the age of 18 even if there is no existing child support order, so long as the permanent mental or physical disability existed prior to the child turning 18.  This is a change from the current law, which requires a parent of a mentally or physically disabled child to file for support and obtain a court order prior to the child reaching the age of 18.-- Kari Jackson, Associate at Hall & Hall

Are there any ways to share information about our children with my ex-spouse?

    Oftentimes, parents who have difficulty in their own relationship with each other may find it hard to communicate with each other about their child(ren). Parents can consider attending co-parenting classes together or co-parenting counseling. They can also consider using a program such as Family Wizard to organize their child(ren)’s schedule and records, to help communicate, to track expenses for the children, and to assist in work being done with other professionals.  Technology can some times help alleviate conflict so that parents can focus on their children and their parenting responsibilities. -- Heather Winter, Associate at Hall & Hall

How much alimony can I get?

Check out our article in Richmond Family Magazine on how alimony works:  
http://richmondfamilymagazine.com/rfm-community/66253/