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DIFFERENCE BETWEEN LEGAL AND PHYSICAL CHILD CUSTODY

Legal custody is the right of a parent to make decisions for the minor children. This could be how or where they will be educated, medical treatment, even when they can begin driving or dating. Normally, this right accrues to a person by the mere fact that he or she is a parent of the minor child. In divorce or child custody proceedings, the vast majority of times a court orders that parents have joint legal custody over the children. This is saying that both parents are fit and able to make decisions in the best interests of the children. Joint legal custody is in regards to making decisions for the child, and not the physical time that is spent with them.

Physical custody, on the other hand, is the physical arrangement for how each parent will spend time with the kids. This usually plays out for both parents being involved frequently in the lives of their kids. Whether it is spending every other week with parents, every few days, or even just the weekends, such arrangements are up to the parents, or if they can’t agree, to the court. The parent who has the child for the majority of time is usually called the one with primary physical custody. But each parent (unless held to be unfit or for some other good cause) has a right to spend time with the children. Note: In Virginia, if one parent has the child for 90 or more (24 hour) days a year, that is referred to as shared physical custody. This gets more complicated, as it affects the calculation for child support. Consult with an attorney for more details.

UNCONTESTED DIVORCES IN VIRGINIA

Steps involved in an Uncontested Divorce

Virginia law permits a divorce when the parties have lived separate and apart without cohabitation for one year and at least one of the parties had the intention that the separation was to be permanent. If there are no minor children and a written agreement as to all issues has been signed, 6 months of separation is sufficient.

The steps for obtaining a divorce are straight forward assuming all issues regarding child custody, child visitation, child support, spousal support and division of marital property and debt have been resolved. The typical way to resolve issues is by a written property settlement agreement (PSA). Once the time has run to allow court filing, this is the process:

1. File a complaint for divorce. Note: the court only acquires jurisdiction to grant a divorce based on voluntary separation once you've been separated for the required time period. You cannot file for an uncontested divorce file prior to the expiration of the 12 or 6 months separation period, whichever is applicable. This is true even if the divorce were not to be granted until after the period has run; the complaint must not be filed early.

2. Give the complaint to the spouse and ask him or her to sign a waiver form. The waiver allows you to avoid hiring a process server for formal service of the complaint, and allows various steps to go forward without notice to the other side. This saves time and money. The waiver form has to be notarized.

3. Prepare the final decree for the judge to sign, including a separate document (a private addendum) that contains social security numbers (by law, those numbers have to be kept separate from the full divorce file, which is a public record.)

4. Complete a VS-4 form, a State required statistical form.

5. Complete affidavits by you and a corroborating witness. These affidavits provide basic factual information and the evidence the court needs of your residence (or your spouse's residence) in Virginia, and that you've lived separate and apart for the required time period.

5. Submit the signed final decree and private addendum, and the originals of the affidavits, the waiver, and the PSA (if there is one) and the VS-4 form to the court.

If there are retirement accounts to be divided, there are special rules that apply to avoid unnecessarily imposition of taxes. You need to consult with a lawyer when retirement accounts are being divided.

The steps for an uncontested divorce are not onerous, but procedure needs to be followed. It is easy to make a mistake when you've not done the process before. Many lawyers charge a flat fee for an uncontested divorce. It is recommended that you retain an attorney to help you if at all possible.

The Gubin law office charges a flat fee of $850 for steps 1 through 5 above, plus there is an $86 court filing fee. Preparation of a PSA or the documents for dividing retirement accounts are priced separately. Women can change their married name back to their maiden name as part of the divorce process. Such name change requires an affidavit and several documents.

Please contact this office if you have any questions. Telephone inquiries are answered without charge.

CONTESTED DIVORCES IN VIRGINIA

A contested divorce is a very complicated animal. There are so many possible issues and approaches that any attempt to define the subject in general is risky. Each divorce situation needs to be analyzed based on the particular facts of the marriage and the couple's situation. But here are some general areas that are relevant:

1. Child Custody. Custody has two elements: legal custody and primary physical custody. Legal custody refers to a parent's rights to make major life decisions for the child. Such decisions could be authorizing medical care, choosing education options, even deciding when a child can begin to date. Each parent has the inherent right to make such decisions for a minor by virtue of being a parent. In the vast majority of cases, the court grants the parties joint legal custody over a child. A parent can seek sole legal custody if the parent can justify why the other parent should not be involved in making legal decisions. Examples which would justify sole legal custody would be where the other parent is physically or mentally abusive, is irresponsible perhaps due to drug or alcohol use, or where the relationship between the two parents is so dysfunctional that they cannot jointly make major decisions.

Primary physical custody refers to which parent has the child living with him or her for the majority of time. The determination of physical custody is, like most all issues involving children, decided by the court based on the best interests of the child. In some cases, a court can award shared physical custody, which refers to the child dividing significant living time with each parent, perhaps even a 50-50 split. Shared physical custody is difficult to implement, and is best attempted by parties who function well with each other and live very close to each other.

2. Child Support. Each parent has a legal obligation to support their minor child. Virginia has statutory guidelines that fix the amount of support a child should receive based on the total family income. Each parent's percentage of the family income that he or she earns determines the percentage of support that that parent must contribute. Guidelines are just that, guidelines, and can be varied based on specific factors that justify an increase or decrease in the statutory amount. Google "Virginia child support guidelines" to find websites where you can estimate support.

3. Child Visitation. The parent who gets primary physical custody is referred to as the custodial parent. The non-custodial parent has the right to visit with the child, often on weekends, holiday, vacation times, perhaps mid week. The issue of visitation time is complex and will be very much tailored to each situation.

4. Spousal support. Spousal support is a very difficult subject to explain. There are 13 factors that a judge reviews to determine spousal support. Major ones are your assets, your income and your need. An overall principle is that the recipient spouse is to be maintained in the standard of living existing during the marriage, consistent with the paying spouse's ability to pay. (The paying spouse has a right to maintain a comparable standard of living too.) Many times there is not enough money to maintain both in the same standard of living, so compromises are required. Much of this is subjective and it is hard to give assurances as to what a judge would do in each individual case. This issue can best be explained during a personal consultation, where your individual fact situation is reviewed.

5. Property Settlement Agreement. The parties are always free to resolve their issues in a written document. Anything you sign WILL permanently bind you so it is very important that you NOT sign anything until you have consulted with a lawyer.