Q: Can I get a separation if my spouse does not leave the house?

A: In order to get a "no-fault" divorce in Virginia you must live separate and apart for six months (if there are no children under 18 at the time of the divorce) to twelve months prior to the date of filing for the divorce. While many potential ex-spouses would love to move out as soon as possible, sometimes the economic reality is that neither party can afford to move out on their own and there are no close family or friends where they can set up camp for a few months. In recent years, the Virginia Supreme Court, has thankfully addressed this problem and has approved some divorces on the grounds of living separate and apart while the parties still lived under the same roof.

For these divorces to be successful, the evidence must show that for all intents and purposes they co-existed as nothing more than roommates. They were not sexually intimate; they didn’t eat each other’s food; they did not cook together; they did not clean up after each other; they don’t buy each other gifts; and they let everyone know that they are separated. If you think you want to proceed on this basis, by all means spend an hour with a local divorce attorney that can guide you through the process. An ounce of prevention is a worth a pound of cure.

Q: How much will I get in support?

A: The amount received in child support depends on how much each party makes, how much it costs for health insurance and who pays it, how much is spent on recurring medical expenses for the children, and how much it costs for work-related daycare. The amount ultimately paid also depends on how many children there are and their ages. IF that amount is not enough, you can petition the court for a deviation from the presumptive guidelines found in the Virginia Code.

Q: Can I get alimony from my spouse?

A: That is both a tough question and an easy one. The easy answer is YES, the Virginia Code allows for everyone to petition for spousal support (alimony). The harder answer is that not everyone is entitled to it, and even if you are entitled to it you may not get as much as you think you should. Virginia courts look to many factors in deciding spousal support including your ability to work, the length of the marriage, who provided which kind of contributions (monetary and non-monetary), who stayed home and watched the kids and gave up a job to do it, etc. Understand that even if the judge decides you are entitled to alimony, you will be expected to get a job AND the alimony may not be for as long a term as you think it should be. As with the adultery allegation mentioned above, be careful and realistic about your expectations and you will not be disappointed.

Q: My spouse is behind on child support, can I cut off visitation until the payments are caught up?

A: NO! Custody and visitation are separate and distinct from child support payments. If you withhold these rights you could be found in contempt of court and actually spend time in jail. If your spouse is seriously behind in support payments, you should either see the Department of Child Support Enforcement Services or file a Motion to Show Cause with the appropriate court.

Q: My spouse is making more money than before, can I get support increased?

A: Potentially. Virginia basically adopts what is called a "follow the fortunes" rule. In other words, if the non-custodial parent has a material increase in their income, OR you have a material decrease in your income, child support can be increased or decreased accordingly.

Q: My spouse has the kids and now wants to move to another state. Can she do that?

A: The short answer is, it depends. In order for the court to allow the custodial parent (the one with the kids) to move outside a reasonable distance from where they currently live, that parent must petition the court in order to allow that. Since Virginia follows the "Best Interests of the Children" standard for every decision relating to the kids, the parents must show what is in the best interest of the kids, PERIOD. If a move is determined to be in the best interest of the children, then the court will allow it. If it is not, the court will deny the request.

Q: I think it is better for my kids to live with me now. Can I get the custody order changed?

A: Virginia follows the "Best Interest of the Children" rule. In order for a custody order to be changed, the petitioning parent must show that (1) a material change of circumstance has occurred, and (2) that it is in the childrens' best interest that the change of custody occurs. NOBODY can answer the second question with any degree of certainty since it is a very fact driven issue. See your attorney if you want to change the custody order. Still have questions? Please contact us anytime! We look forward to hearing from you.

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