The laws governing support and custody both during and after a divorce are not cut and dry, and much depends on the approach of the representation each party engages.
While every situation is unique and has its own nuance, here are some basic things to know about how spousal support, child support and child custody is handled in Virginia.
When is Spousal Support Awarded?
Spousal support can be awarded during the pendency of the divorce (referred to as pendente lite support) and at the conclusion of the divorce. Spousal support can also be awarded by a Juvenile & Domestic Relations court when neither party has filed for a divorce in the Circuit Court.
The impact of adultery on spousal support has changed over time. A party seeking spousal support is no longer automatically barred from receiving spousal support if that party has committed adultery. The court can award spousal support to a party who committed adultery if it finds that barring support would cause an undue economic hardship on the guilty spouse. Once the court determines whether to award spousal support, it must decide the nature and duration of support by examining specific factors set out in Virginia law.
It's important to remember that spousal support is not awarded to punish a guilty spouse. Rather, it is provided to lessen the financial impact of divorce on the party who is less financially independent. Accordingly, adultery by the party asked to pay support may have little impact on the support award. The amount awarded for support depends upon such factors as the respective ages of the parties, assets and earning potential of the parties, and the duration and history of the marriage. The court may award spousal support in periodic payments and/or in a lump sum. Periodic payments could be awarded for either a set number of years or an indefinite period of time. Spousal support set by the court is subject to modification in the future upon a change in the circumstances of either party. The court may also require maintenance of an existing life insurance policy by the spouse who is paying spousal support under certain circumstances.
Spousal support does not have to be awarded when the divorce is granted. Instead, the parties may seek a "reservation" of the right to seek spousal support in the future. This reservation will generally last for one half of the length of the marriage. Finally, divorcing spouses can contractually agree to support terms and can agree to make those terms non-modifiable.
Who Receives Custody of the Children?
This is the crucial issue, and often the most difficult issue, in most divorces. In determining the custody of minor (under 18) children, the court is guided by one standard: the best interest of the child. The court may award "joint legal custody" where both parents have a role in making decisions for the child, or "sole legal custody" where one parent is ultimately responsible for making decisions in the child's best interests. Again, it is important to keep in mind that custody will not be given to a parent as a reward or deprived from a parent as a punishment. Rather, custody will be awarded to the parent who is most adaptable to the task of caring for the child, and who is able to control and direct the child. Further, custody may be changed if there is a material change in circumstances after the date of the divorce.
Factors considered by the court when awarding custody may include the age of the parent and child, the physical and mental condition of each parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, the home where the child will live, and the child's wishes if the child is of sufficient age, intelligence, and maturity to make such a decision.
Another important factor to the court in establishing most custody arrangements is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children's lives. Often the court will fashion living arrangements such that the child, at least during the school year, will reside primarily with one parent. The other parent will have scheduled time with the child. Time sharing between the parents will be set by the court if there is a dispute and the parents cannot voluntarily agree upon satisfactory arrangements.
What are the Child Support Obligations?
Each parent is expected to contribute to the support of the minor child. Depending on the time-sharing schedule, the difference between the parties’ incomes, and other factors, there may be a child support payment that is owed between the parents. The court is guided by the needs of the child and the ability of the supporting parent or parents to pay. The use of the state child support guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The award is subject to change so long as the obligation to support remains. The child support amount may be increased or decreased if a material change occurs in the circumstances of either or both of the parents or of the child. Depending on the time-sharing schedule, the court may use a “shared custody” guideline (where both parents have more than ninety days per year with the child) or a “sole custody” guideline, where one parent has fewer than ninety days per year. Both guidelines take into account the cost of work-related childcare and health insurance premiums for the child. The court may also require a party to maintain an existing life insurance policy to provide financial security for a child in the event that the parent obligated to pay child support dies.
We Can Help
If you need counsel regarding support and custody, please give Davis Law Group a call and set up an appointment with our experienced family law attorneys. We are here to help you navigate this difficult time.