DOMESTIC RELATIONS AND DIVORCE

CRIMINAL AND TRAFFIC LAW

PERSONAL INJURY LAW

DOMESTIC RELATIONS AND DIVORCE

1.   Does the law permit the custodial parent to relocate to a different geographic area, thereby affecting the non-custodial parent's visitation schedule?

This question has been the subject of contention in Virginia since 1972. In the landmark case of Carpenter v. Carpenter, the trial court refused to permit the custodial parent (the mother) to remove two children from Virginia and return to her home state of New York where she maintained that employment was more readily available and where her family resided. The father established that he had a very close and intimate relationship with his children, and the children themselves had a very nurturing relationship with the local community. Since the Carpenter v. Carpenter case, there have been numerous decisions, both restricting the removal of children from a geographic area and permitting the removal of children at the request of the custodial parent. Though there are cases on both sides of the issue, there are a number of elements which stand out and which generally have significant effect on the decision of the trial court. Those elements are as follows:

a.   The motivation of the move. If it appears to the court that the custodial parent is moving simply to adversely affect the relationship of the children to the non-custodial parent, then the move would probably not be approved.

b.   The nature and extent of the contact and relationships formed by the children in the local area. Do the children have grandparents, aunts, uncles and other blood relationships in the local area, and what is their relationship with those relatives? The number of friends and the strength of those relationships in this geographic area. The strength of the relationship between the non-custodial parent and the children and the nature and extent of the non-custodial parent's contact with the children.

c.   What alternate arrangements are proposed by the custodial parent in order to assure continued contact by the non-custodial parent? If the relocation removes the children a great distance from the Tidewater area, what willingness has the custodial parent shown to assist in transportation or the cost of transportation to assure visitation by the non-custodial parent?

d.   The court will consider all other evidence which will assist it in making a decision in assessing what is in the best interest of the children. It is this benchmark that governs the ultimate decision of the court, and not a single element will generally control the court's decision. It is the accumulation of all of the facts which convinces the court.

2.   How does the court establish the obligation of the non-custodial parent for the payment of child support?

The court, in determining child support, is controlled by child support guidelines, which guidelines establish the presumptive amount of child support to be considered by the court. The guidelines operate by utilizing the gross income of both parents in establishing the baseline support amount. To that figure is added the cost of work-related child care, any extraordinary medical expenses and the cost of health care insurance. The product of these figures is then divided by the parties based on the relationship of their respective incomes. Once the court establishes child support based on the child support guidelines, the court has the authority to deviate from the child support guideline amount based on a number of statutory elements. For example, if the non-custodial parent has a court order to support children by a prior marriage, then the court can modify his obligation for the child support payment of his current family. Additionally, the court can impute income to a parent who is voluntarily unemployed or underemployed. The court can consider the tax implications, such as which of the parents is receiving the dependency allowance for tax reporting purposes. Suffice it to say that there are a number of arguments that can be addressed to the trial court in an effort to convince the court to modify the child support guidelines.

3.   How does the trial court determine the amount of spousal support (alimony) to be paid to the dependent spouse?

There are no guidelines promulgated by the legislature of Virginia to assist in the determination of the amount of spousal support to be paid the dependent spouse. Section 20-107.1 of the Code of Virginia sets forth the following elements to be considered by the court in determining the nature, amount and duration of a spousal support award:

a.   The obligations, needs and financial resources of the parties, including, but not limited to, income from all pension, profit sharing or retirement plans of whatever nature.

b.   The standard of living established during the marriage.

c.   The duration of the marriage.

d.   The age and physical and mental condition of the parties and any special circumstances of the family.

e.   The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home.

f.   The contributions, monetary and non-monetary, of each party to the well-being of the family.

g.   The property interests of the parties, both real and personal, tangible and intangible.

h.   The provisions made with regard to the marital property under Section 20-107.3.

i.   The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity.

j.   The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability.

k.   The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market.

l.   The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party.

m.   Such other facts, including the tax consequences to each party, as are necessary to consider the equities between the parties.

The skill and experience of the attorney presenting the case to best match the facts of the case to the elements to be considered by the court will have the best results on either side of the issue. The factual variations of each case are such that a precise result is impossible to predict. The experience level and competency of the attorney presenting the case can ofttimes be determinative.

4.   What is the duration for the payment of spousal support?

Spousal support may be awarded, in the discretion of the court, in periodic payments for a defined duration, or in periodic payments for an undefined duration, or in a lump sum award, or in any combination thereof. In more simplistic language, the court may, in its discretion, award what is called rehabilitative spousal support for a defined period of time, where, as an example, there is a marriage of short duration and the dependent spouse requires assistance for a specific reason, such as completing an education curriculum. In long-term marriages, the court is much less likely to consider restricting the payment of spousal support to a defined period of time. Again, the court experience and ability of the attorney will ofttimes play a critical part in the court's judgment.

5.   What does the court do relative to the division of marital assets?

The court will treat the marriage as an economic partnership, and in so doing, will make the following determinations:

a.   Identify all assets which are "marital assets."

b.   Establish a value for all "marital assets."

c.   The court will then lastly determine the division or transfer of jointly owned marital property or the amount of any monetary award to be made based on a number of elements set forth in Section 20-107.3 of the Code of Virginia. It should also be noted that the court can consider and apportion the marital debt of the divorcing couple.

6.   What are the most important elements considered by the court in making a determination of child custody?

The issue of child custody and visitation is ofttimes the most divisive element in a divorce case. Parents who are capable of resolving their differences in this area will find that they and their children are best served. In the regrettable cases in which child custody is contested, the primary element considered by the court is "the consideration of the best interest of the children". In most instances, the court presumes that both parents love their children and further presume that it is in the best interest of the child to have considerable and substantial contact with both parents. There are obviously exceptional circumstances under which this is not true. Suffice it to say that in the final analysis, you can expect that the court will make a determination which it believes is in the best interest of the child or children. The effective presentation of a custody dispute requires imagination and good old hard work. Here again, the experience and knowledge of the attorney can ofttimes be determinative.