Divorce

With minor children

Not every divorce is the same, just like not every marriage is the same, but there are certain similarities that we see in marriages, depending on how long they lasted. We’ve broken this portion of the website down further so that you can contemplate some issues specific to your unique situation.

In this section, we consider marriages of different durations where children are involved. Specifically, this means that custody and visitation is automatically a consideration (at least, as long as your children are minors). We also consider the implications related to spousal support, which is often tied quite closely to the duration of the marriage itself. (Though being married a long time is not a guarantee that you will receive it, nor is being married a short time a guarantee that you won’t.)

Spousal support is a unique area of the law; it’s not an entitlement, it’s an earned benefit that requires a specific set of circumstances in order to be awarded.

Married 1-7 years with minor children

It’s just not working, so it’s no use dragging it out any longer. You’ve devoted as much as you can to your marriage, and still there’s something missing. It’s better to figure it out sooner rather than later, anyway.

It’s possible that, at this point, you still have some of your own separate property (things that you earned or acquired before the marriage), but you probably also have things that were earned during the marriage–and those things will have to be divided. It’s important that you know what you’re entitled to under the law, so that you and your family will be financially secure post-divorce.

Two of the biggest areas where we see similarities in shorter term marriages are in spousal support and child custody and visitation.

Spousal support

Spousal support is really tricky. If you’re planning on asking for spousal support, you’ll probably need to talk to someone to find out if you qualify to receive it, sooner rather than later, so that you can begin to plan your case.

When attorneys and judges determine whether a person in a particular set of circumstances is entitled to receive spousal support, they are looking at three main criteria: need versus ability to pay, the statutory factors, and the length of marriage.

The length of marriage really matters when it comes to spousal support, because it helps to determine two things–whether you’ll receive support at all, and, if so, how long you’ll be entitled to it. The length of marriage is one of the statutory factors, but it’s important for another reason, too. A while back, the Virginia legislature heard a proposal to make length of marriage a factor in determining how long a person would receive support. The proposal did not pass, so it never became a law. Still, because of this proposal, and because so many family law attorneys and judges were talking about it, it has become a presumption that we all consider when we determine spousal support.

Typically, for shorter term marriages, we see no support awarded at all, or support ordered for only a short period of time. It’s hard to deal in absolutes in family law, but I think it’s safe to say that, for a marriage of less than 7 years, it would be uncommon to see spousal support awarded for more than half the length of the marriage.

Before you panic, remember that this is not law, and it’s not set in stone. It’s just a presumption, so it’s possible that you could get more, but it’s also possible that you could not qualify for spousal support at all. Still, you should plan to talk to an attorney about your unique case, and, if there are any extenuating circumstances that demonstrate that you deserve to receive spousal support for a longer period of time, it’s a great time to start talking about it.

Child custody and support

Depending on the age of your children, custody and visitation can be completely different. As you can probably already imagine, custody and visitation of a newborn is entirely different from custody and visitation of a high school aged child. Especially if your children are young, you’re really going to want to think carefully about custody and visitation. They may be young today, but they’re going to grow up, and a major goal of your divorce should be to establish a custody and visitation arrangement that will grow with the children, so that you and your soon-to-be ex can focus on co-parenting together, rather than taking each other to court year after year.

If your children are young, you may have some more flexibility when it comes to custody and visitation arrangements. For example, with breastfeeding babies, it may be possible to negotiate an arrangement that allows dad to visit often for shorter periods of time, possibly even in your own home (to minimize the stress of separation on the baby, and to ensure you’re always on hand to nurse). As the child grows older, custody and visitation can expand. Overnights may not be appropriate for your child for a number of years, and many parents work together to negotiate a custody and visitation arrangement that starts out more narrowly, but expands to accommodate the child as he grows and is able to handle more.

For school aged kids, we often see middle of the week visitation, and extended periods of time of uninterrupted visitation in the summer, so that each parent has an opportunity to take a vacation with the child.

As the children get older, sometimes their preference comes into account. Depending on the age and maturity of the child, the judge can listen to the child (though the judge isn’t bound by the child’s opinion). We find that some of our clients with older children find that it’s best to hold on with an open hand. Children, once they have driver’s licenses, are difficult to keep in one place–especially if they’re determined to leave. (And is there anything in the world more miserable than an unhappy teenager?)

Since every divorce is different, it’s usually beneficial to talk one-on-one with an attorney to get an idea of how the law might apply in your unique case.

Married 8-19 years

After devoting so much of your life to your marriage, it’s hard to imagine a new future for yourself. So many of your assets are things that were earned, purchased, or acquired during your marriage, so now they’ll have to be divided. It’s painful to see this happen, especially after all the sacrifices you’ve made to keep your marriage and your family together.

All divorces are different, but longer marriages have certain things in common. Two big areas where we usually see differences in longer term marriages (as opposed to shorter marriages) are in spousal support and child custody and visitation. Keep in mind that your situation may be a little bit different, and it’s always a good idea to talk to a divorce and custody attorney about your specific circumstances, and how the law might apply.

Spousal support

Spousal support is one of the more complicated areas of law, so you’ll probably need to talk to someone to find out if you qualify to receive it. When attorneys and judges talk about spousal support, especially when they’re determining whether a person is entitled to receive it, they are looking at three main criteria: need and ability to pay, the statutory factors, and the length of marriage.

The length of marriage really matters when it comes to spousal support, because it helps to determine two things–whether you’ll receive support at all, and, if so, how long you’ll be entitled to receive support. The length of marriage is one of the statutory factors, but it’s important for another reason, too. Several years back, the legislature heard a proposal to make the length of marriage a factor in determining how long a person would receive support. The proposal did not pass, but, because of that law, length of marriage has become an important determining factor when it comes to spousal support. Basically, it’s a presumption–but it’s an important presumption, because it helps lawyers and attorneys determine what is appropriate.

In a medium-length marriages (though towards the 15+ end of the spectrum, depending on the facts, it could be considered a longer term marriage for the purposes of spousal support), we’re usually looking at support of roughly half the length of the marriage. These days, that award of spousal support is not taxable to you or deductible to him. The law is constantly in a state of flux, so you’ll want to check in about updates to the law and how that might impact your award of spousal support.

Again, though, you should know that this is NOT law, so it’s not set in stone. It’s just a presumption, so it’s possible that you could get more, but it’s also possible that you could get less–or not qualify for spousal support at all.

You should plan to talk to an attorney about your unique case, and, if there are any extenuating circumstances that entitle you to receive support for a longer period of time, you should certainly mention those to your attorney at that time.

Child custody and support

Child custody and visitation can be pretty different, depending on the age of your children.

Different custodial and visitation arrangements are appropriate for children of different ages. For school aged children, you’re probably looking at some overnights and extended periods of uninterrupted visitation over the summer. For younger children, less time may be more appropriate, with that time expanding as the child gets older.

In some situations, it may be appropriate to let the child have a say. There’s no specific age at which a child can say whether he’d prefer to be in dad or mom’s custody, but courts look at the age and maturity level of the child. Sometimes, parents (especially parents who are negotiating an agreement together) agree to let the child decide, mostly because they know that a child with a driver’s license is hard to keep in one place. It’s totally up to you how you decide to handle it, but it’s often best to hold on with an open hand.

Of course, not every divorce is the same, and your case may present unique issues. Because there is so much at stake financially, it’s important that you talk to a licensed Virginia divorce and custody attorney.

Married 20+ years

Spousal support

You have invested a lot in your marriage, and you have a lot of shared assets and investments. There’s a lot at stake here, and it’s not just your finances. You’ve raised children together, and your relationship with them after all is said and done is pretty critically important, too.

Long term marriages are unique in a lot of ways. Because you’ve been together for such a long time, more of your assets and liabilities are commingled, which means that it is a little more complicated to separate everything. In twenty or more years together, you probably own a house (and maybe even a second or third home). You’ve supported him through different jobs, and probably even a career change or two. You’ve invested in him by supporting his career or hobbies by giving more of yourself.

There are a lot of ways that a divorce after a long term marriage is different than a divorce after a short term marriage. We’re going to talk about two big areas where we usually see differences in long term marriages: spousal support, child custody and visitation, just to give you an idea of how these things might work in your situation. Keep in mind, though, that no two divorces are exactly the same, so it’s always a good idea to talk to an experienced divorce attorney to determine how the law might be applied in your unique case.

To determine whether you would be awarded spousal support and for how long, you have to look at three things: need versus ability to pay, the statutory factors, and the length of marriage.

The first two factors, need versus ability to pay and the statutory factors, help determine whether an award of spousal support would be made. The third factor, length of marriage, determines two things: whether an award of spousal support would be made and how long spousal support would be received.

The last prong of the test, length of marriage, is the most important. Because your marriage is long term, it does support an award of spousal support (assuming, of course, that the other two prongs of the test have been met).

The length of your marriage matters when it comes to determining how long your award of spousal support should be. Most Virginia judges and lawyers would agree that a long term marriage probably warrants a spousal support award (though, you should note that this is not the law, just a presumption) of between half the length of the marriage to, potentially, permanent spousal support.

Permanent spousal support isn’t cut and dry though; there are a lot of things that could impact your support award, including whether or not you’re able to go back to work (in any capacity), and also what access you may have to other assets (including, for example, trust funds, inheritances, or other separate property).

Child custody and visitation

Child custody and visitation can be pretty different, depending on the age of your children. If your kids are over the age of 18, they’re no longer legally classified as children, and custody and visitation no longer applies.(Which also means that, if you’re able to negotiate an agreement, you could potentially get a divorce after only six months’ separation, instead of the full year!)

Depending on the age of your children, different custodial and visitation arrangements are appropriate. For school aged children, you’re probably looking at some overnights and extended periods of uninterrupted visitation over the summer.

In some situations, it may be appropriate to let the child express a preference, especially once they’re teenagers. There’s no specific legal age when a child can say whether he’d prefer to be in dad or mom’s custody. Virginia judges look at the specific child in question, and try to determine whether his age and maturity supports his preference. Sometimes, parents (especially parents who are trying to stay out of court) agree to let the child decide, mostly because they know that a child with a driver’s license is hard to keep in one place. It’s totally up to you how you decide to handle it, but it’s often best, if you have an older child, to at least listen to his preference before you make a decision.

Of course, not every divorce is the same, and your case may present unique issues. Because there is so much at stake financially, it’s important that you talk to a licensed Virginia divorce and custody attorney.