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Attorney Client Relationship |
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| Question: |
What if you have met with the other party? |
| Answer: |
Then it is highly unlikely we can meet with you. |
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| Question: |
What are the client's responsibilities to the attorney? |
| Answer: |
Primarily they are to cooperate. If information or documents are needed from the client, the client must provide them. You may choose not to follow the advice of counsel, but as long as we are your counsel, we can not support actions or behaviors that impair the case. Deadlines with the court or those dictated by the Rules of the Supreme Court of Virginia, for example, must be met. |
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| Question: |
What are the attorney's responsibilities to the client? |
| Answer: |
Primarily to speak for you and look out for your best interests and the best interests of the case. This means that we will communicate with the opposing counsel, any third parties such as guardians ad litem, experts and the court on your behalf. Another key responsibility is to educate the client as noted above. |
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Child Support |
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| Question: |
Can the court consider additional cost factors in setting child support? |
| Answer: |
Yes, they are called deviation factors. They can include the costs of private school, tutors, and the like. |
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| Question: |
What does the visitation/timesharing plan have to do with child support? |
| Answer: |
If the child or children are with one parent for 90 or more days, a different mathematical calculation is used. If there are two or more children and the children reside primarily in different households, a calculation to address that visitation/timesharing arrangement is used. |
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| Question: |
Why is child support determined after spousal support? |
| Answer: |
Because any amount of spousal support payable from one parent to the other is added to the receiver's income and deducted from the payor's income to determine the parties incomes for the child support calculation. |
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| Question: |
If a mortgage contribution is being paid, is that factored into income like spousal support? |
| Answer: |
No, because it is to paid to maintain the asset, not to provide support for a party. |
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| Question: |
What if the other parent makes less than they should or could? |
| Answer: |
If they used to earn more and now earn less due to decisions or actions they have taken, the court can treat them as having earned the higher amount of income. |
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| Question: |
What if there are other children to support? |
| Answer: |
If the person writing the check is supporting another child, a different calculation is used to keep some of that parent's income in their household for the benefit of the other child. |
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Contract Dispute |
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| Question: |
What if, after the contract is signed, there is something I want to change about it? |
| Answer: |
If it is an executed contract, and the contract is not ambiguous, it is not likely that you will be able to change it without agreement of the other party. |
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| Question: |
What if we don't agree about what a term in the contract means? |
| Answer: |
The plain meaning rule applies, but if that does not resolve the dispute, the court can step in and consider who drafted the contract and how the parties will be impacted by a reading of the contract in one way or another. |
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Custody & Time Sharing |
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| Question: |
What if my spouse and I have trouble reaching joint decisions regarding the children? |
| Answer: |
The court may decide to give one parent the ultimate decision making authority after full consultation with the other parent, or a parent may be granted sole legal custody. |
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| Question: |
At what age can the child decide where they want to live? |
| Answer: |
Technically speaking, at the age of majority, which is 18 in Virginia. Prior to that time, the court can decide that the child's preference should not be honored, if so voiced, because it is not in the child's best interests. |
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Custody Modification |
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| Question: |
What constitutes a change in circumstances? |
| Answer: |
Changes involving the children themselves, such as their maturity, their special educational needs, and any of a myriad of changes that might exist as to them, positive changes in the circumstances of the non-custodial parent, such as remarriage and the creation of a stable home environment, increased ability to provide emotional and financial support for the children, and other such changes and/or negative changes in the primary physical custodian's home may all qualify as changes in circumstances that would cause the court to reconsider the existing timesharing arrangement. |
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| Question: |
What if the initial determination was just wrong? |
| Answer: |
Then you may want to file a motion for reconsideration or appeal the decision to a higher court, but you likely are not in a position to seek a modification based on a change in circumstance. |
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Division of Assets |
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| Question: |
What is marital property and what isn? |
| Answer: |
Marital property is any property acquired during the marriage or with marital assets. |
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| Question: |
What is separate property? |
| Answer: |
Primarily property inherited by a party which is not gifted or co-mingled inextricably with marital property, and property acquired before marriage or any anything derived from it. |
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| Question: |
What about taxes and other things that must be dealt with during separation, will the court intervene? |
| Answer: |
Often not. Parties are encouraged to agree on such matters. If they cannot, then they will make the best decision they can and, if an inequity has resulted from the acts of one or both parties, the issues will be addressed at the final hearing. |
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| Question: |
What if we have forgotten to consider something, or something unexpected comes up after we have reached an agreement or after the court has ruled? |
| Answer: |
If it is after an agreement is entered, see Contract Dispute in the Post Divorce section. If it is after a court has ruled based on the evidence presented at trial, you may have an avenue for the court to make a subsequent ruling, however, it will be largely based on the specific circumstances at hand. |
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Mediation |
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| Question: |
Can't my attorney just talk to the other attorney? |
| Answer: |
Yes, and they often do. And if they can work things out to their client's satisfaction, there is no need for a mediator. |
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| Question: |
If you act as the mediator, can you also be counsel for one of us? |
| Answer: |
No, the mediator must be unbiased and that is in conflict with a counsel's role as advocate. |
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Post Divorce |
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| Question: |
How do I recover assets that were hidden? |
| Answer: |
If need be, you file a suit and ask the court to recognize the actions of the other party, and do equity by providing you with a monetary award and fees for having to come to court as a result of the party's failure to disclose. |
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| Question: |
What if the other person just refuses to do what the contract requires? |
| Answer: |
Once the contract is incorporated into a court order, you can file a Rule to Show Cause and ask the court to enforce the order, as well as order the other person to pay your fees and costs as their actions necessitated the court's involvement. |
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Pre-Nuptual Services |
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| Question: |
Do I have to have a Prenuptial Agreement to protect my interests? |
| Answer: |
No. The law will generally allocate to you any property you owned before marriage if you do not mingle it to the point of non-recognition with marital property and the courts will divide marital property between the parties absent an agreement in the event of a divorce. |
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| Question: |
What happens to the agreement if we don't marry? |
| Answer: |
They are valid upon marriage, so the contract never comes into play. |
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Separation & Divorce |
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| Question: |
Do I need a legal document to be separated? |
| Answer: |
No. Separation begins whenever the husband and wife begin living separately, in two households (actual separation), or living separately in the same household constructive separation. |
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| Question: |
Can we live separately in the same house? |
| Answer: |
Yes, if certain conditions are met. First and foremost, you and your spouse cannot act as married persons in any regard. This doesn't just mean no intimate relations, it also means that you don't cook for each other, nor do each other's laundry or shopping, and you don't socialize as a couple. |
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Spousal Support |
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| Question: |
What's the difference between spousal support, alimony and separate maintenance? |
| Answer: |
There isn't any, they all mean an amount payable from one spouse to the other so that the spouse in need can afford to live. |
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| Question: |
How long does Pendente Lite support last? |
| Answer: |
Usually until the final decree of divorce is entered. |
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| Question: |
For how long will I receive alimony? |
| Answer: |
That is determined by the length of the marriage, your ability to financially meet your own needs and the ability of the opposing party to pay along with a host of other factors. If the court decides you should only need support for a limited amount of time, that is called Rehabilitative Spousal Support. If you are awarded support until death, remarriage or cohabitation, that is considered permanent support. |
