Kelly Byrnes & Danker, PLLC

Virginia Family Law Blog

Making divorce less stressful for children

When parents in Virginia determine that they can no longer live together, it's often children who are affected most. Fortunately, there are some steps that parents who are still able to remain civil toward one another can take to protect their kids and make the transition to a two-household life less stressful.

While it's not always easy for parents to remain entirely civil after untying the knot, children of divorce don't need to hear tales of their other parent's misdeeds. Kids also tend to appreciate being clearly told the divorce wasn't their fault to help ease lingering feelings of guilt. Honestly is important although there is such a thing as sharing too many details, especially painful or uncomfortable ones. Furthermore, children of all ages often benefit from being able to show affection openly for both parents while also being able to talk about enjoyable experiences they have during visits.

Planning for divorce can provide benefits

Many Virginia residents know someone, either a relative or friend, who has been completely blind-sided by a divorce. He or she was living a regular, happy life when the other spouse came home one day and declared the marriage was over and there was no possible means of reconciliation. It may be hard to imagine there were no signs of problems, but sometimes one spouse has moved on while the other clings to the comfort and stability of the past. However, when a split seems all but inevitable, it can prove beneficial to begin preparation sooner rather than later.

The laws are clear that neither party in a divorce can hide assets or be anything less than completely honest in dealing with a pending divorce, but the reality is often different. Legal experts stress the importance of having full financial records as an imperative before initiating any divorce proceedings. This includes bank records, property deeds, retirement accounts, and perhaps most importantly, an accurate accounting of all debts and liabilities. By doing so, the individual is acquiring all the documentation needed but is also getting a good feel for the issues that will impact how the property division may play out.

An overview of legal custody

In Virginia and throughout the country, parents may be awarded either physical custody or legal custody to their children. In some cases, they will receive both types of custody. Legal custody gives a parent the right to make important decisions related to a son or daughter's health and general welfare. These decisions may involve the type of medical care a child receives or what religious practices he or she will be exposed to.

Parents may receive either sole or joint legal custody. Often, courts will award joint legal custody as it tends to be in the child's best interest. Sole legal custody may be granted in cases involving parents who are deemed to be unfit. A judge may declare a parent unfit because of a drug or alcohol problem or other issues that could call into question that individual's decision making ability.

Divorce and business owners

When couples in Virginia divorce, finances are often a top concern. This is particularly true if either spouse owns a business or the couple owns a business together. This is because businesses are often a significant asset and, in many cases, a primary source of income.

In cases where the couple owns the business together, some important decisions will have to be made. These include whether the business will be sold outright, whether the couple will continue operating as before or whether one spouse will buy out the other's share. If only one of the spouses owns a business, other questions arise, including determining that spouse's income for child support and spousal maintenance payments.

Determine if your assets were commingled before divorce

When you file your divorce petition, the judge overseeing your case will conduct property division proceedings at some point unless you negotiate an agreement outside the courtroom. Virginia, along with all but nine other states, is an equitable property state. This means that the court would not necessarily divide your marital property equally. Instead, the judge will determine a fair and equitable way to distribute your marital assets and liabilities between you and your spouse, which may not mean a 50/50 split.

This begs the question: What constitutes a marital asset? The answer is not always simple. That's because you may have owned property separately from your spouse. It's also possible that property you believe you own separately ended up commingled, meaning you used it in such a way that it is now marital property. It's critical that you understand such issues before heading to court.

Divorce and Social Security

The Social Security Administration reports that 96% of workers throughout Virginia and the rest of the United States have Social Security coverage. People who are eligible to receive Social Security benefits when they retire should know how the process works.

For those who have been married, it may be possible to receive spousal benefits from Social Security, even if they have low income or have never worked. In fact, one can receive up to 50% of their spouse's entire benefit if that ex is qualified for Social Security. It is also important to note that the eligibility to receive the benefits does not always go away if a divorce occurs. Individuals will find it helpful to be aware of their rights since the benefits to which they may be entitled, even after a divorce, can affect a retirement plan.

How alimony is determined in divorce cases

Family law attorneys in Virginia and around the country generally seek to nurture a spirit of compromise and cooperation during divorce negotiations before broaching possibly contentious issues like spousal support. Spouses who are expected to pay alimony often bitterly resent the monthly payments, but they may adopt a more flexible approach after learning why it is awarded and how it is calculated.

When divorce negotiations do not lead to an amicable settlement and the matter of spousal support is left to family law judges, the amount awarded is based on the needs of the recipient and the income of the payer. Judges also consider the lifestyle the couple enjoyed and the length of time they were married. Alimony was originally introduced to prevent homemakers being left destitute by a divorce, but it is now sometimes awarded even to spouses who work and earn a good living if their former partners earn substantially more.

Reducing the effect of divorce on retirement

Regardless of how close or far away retirement might be for a Virginia couple, divorce could make a significant dent in their retirement savings. Further complicating matters may be the fact that it can be difficult to set aside emotions during divorce negotiations. However, this will be necessary to ensure future financial security.

Spouses may have IRAs, pension or 401(k) accounts. Whether or not the account was established prior to the marriage, both spouses may be entitled to a portion of the funds. When looking at the value of an IRA, it's important to keep in mind that withdrawals before the age of 59 1/2 are penalized. To divide a pension or 401(k) as part of a divorce settlement, it is necessary to have a document called a qualified domestic relations order. This is not needed for an IRA.

These are the considerations made in custody cases

Divorce is tough. But it can be significantly harder when children are involved. Not only are the usual issues present – dividing assets, sorting out finances – but there’s also custody and the children’s welfare to consider.

When deciding on a custody arrangement after divorce, it’s always important to take the children’s best interests into consideration. But how to go about that is different for every family.

Shared parenting becoming increasingly common

For much of the 20th century, courts in Virginia and other states almost universally sided with mothers when making custody decisions. But during the past 30 years or so, shared parenting, or joint custody has gained more acceptance. Child custody itself can be broken down as legal custody and physical custody of the child or children involved.

While there are exceptions, courts generally approach shared parenting today with an assumption that joint legal custody will be awarded. However, situations involving physical custody, defined as where a child sleeps at night, generally favor the mother because of logistical issues, such as school obligations and the physical location of both parents' homes. Even so, there has been a clearly noticeable shift in custody trends since the 1980s, as documented by a 2014 study.

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Kelly Byrnes & Danker, PLLC

Kelly Byrnes & Danker, PLLC

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