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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.