Montgomery, Kelley, & McKinnon, P.L.C.

Divorce, Custody, and Visitation

We handle Uncontested or Contested Divorces, Custody and Visitation

Uncontested Divorce

To file an Uncontested Divorce there must be no issues unresolved regarding property, support, custody, etc. People usually file this type of divorce if they have already decided how to divide their property and handle the custody and visitation issues. Another classic example of “uncontested” is when the parties have already been separated for a number of years. In these situations the parties simply need an attorney to draft a Property Settlement Agreement to put the understanding in a legally enforceable written format.

Contested Divorce

This happens when the parties cannot come to an agreement about the separation of property, support, or custody of the children and the court has to decide the issues for them. In a number of cases the parties start out contested and then reach an agreement through the assistance of their retained counsel.

The above terms should not be confused with “grounds for divorce” which are Fault Grounds and No-Fault Grounds.

Fault Grounds

The State of Virginia recognizes four types of fault based divorces; adultery or sodomy, cruelty and reasonable apprehension of bodily harm, willful desertion or abandonment; and conviction of a felony by either party subsequent to the marriage and confinement for more than one year.

No-Fault Grounds

If the parties have children, a no-fault divorce is based on the fact that the parties have lived separate and apart for more than one year. If the parties enter into a Property Settlement Agreement and there are no children involved they can file for a divorce after six months.

Property Settlement Agreement/Separation Agreement

The parties enter into this agreement to settle all issues that would otherwise have to be resolved by the court. A meeting of minds is the easiest way to accomplish an agreement. Each party may have an attorney represent them in the negotiations of the agreement, and it is highly advisable that if one party has an attorney that the other party have representation by an attorney as well. Once the agreement is executed by both parties, it becomes a binding contract between the parties and enforceable by the court.

Alimony and Spousal support

This is money paid by one party to the other. Be aware that spousal support or alimony is not an entitlement and the Virginia courts take several factors into consideration before awarding support. The court first considers whether the divorce is fault based or no-fault. The other factors the court takes into consideration are length of the marriage, standard of living during the marriage, age and physical and mental condition of the parties, the obligations, needs and financial resources of the parties, earning capacity, contributions of one party to the education, training or career of the other; the marital property that the parties will receive, and property interests. This support may take the form of a lump sum payout; payments for an undetermined length of time; or payments for defined length of time, which may be used for education or training for the party to become self-sufficient.

Child Custody and Visitation

Issues involving children are usually the most emotional and contested part of any divorce proceedings. For the benefit of the children it is usually better for the parents to try and work out all issues involving custody and visitation. If the parties should not be able to come to an agreement the court will and does step in to consider the best interest of the children. The court will usually order either:

Sole custody: where one party has responsibility for the care and control of the children and authority to make all decisions concerning the welfare of the children;

Joint custody: consists of three types of arrangements; joint legal, where the parents are jointly responsible for the care and control of the children with joint decisions making ability; joint physical custody, where the parents actually share the physical custody of the children; and any combination of the joint legal and joint physical custody.

Shared custody: consists of the parents willing to share the custody, child care, and decisions concerning the children. The court considers it shared custody when each parent has physical custody of the children for more than 110 days of the year.

Split custody: this arrangement happens when there is more than one child in the family and each parent has primary or sole custody of one or more of the children.

Once custody/visitation has been determined, it will not be modified unless there is a material/substantial change in the circumstances that has taken place since the last court order and of course, it is in the best interest of the child. The courts hesitate to change custody unless you can show that there exists a current condition that adversely affects the child.

The non-custodial parent has the right to visit the child; and most courts will not allow complete denial of visitation with a parent. The court has been known under certain circumstances to require supervised visitation when there is some concern for the welfare of the child. Hopefully, visitation is an area where the parties can come to a mutually agreed upon schedule.

Child Support

Parents have a legal obligation to support their children. The obligation continues until the child reaches the age of 18 or continues if the child is still enrolled in high school, until the child attains age 19 or graduates from high school, which ever comes first. The Virginia courts have guidelines that they use in determining child support. These guidelines take into consideration the earning capacity of the parents and even when one party claims to not have an income, the court has the authority to impute income to them. The Department of Child Support Enforcement can also determine and collect child support obligations. The party must first apply for their services, but they can issue administrative orders that have same effect of a court order.

Failure to pay child support is one of the few debts that you can be sent to jail for failure to pay. It is also one of the few debts that cannot be discharged in bankruptcy. You must pay child support. If your circumstances change you can petition to the court for a reduction in the amount of your child support.

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