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What are the rights of an unmarried parent?

Rights of Unmarried Parents
Rights of Unmarried Parents

This is a wonderfully important question because it is something that we get on a regular basis. The short answer is that both parents have equal rights and access to their children in Virginia pending a court order. In other words, each parent has the exact same rights to the child as the other.

Now before I go any further there is a bit of a caveat that needs to be addressed. There is a presumption in the law that the person who gave birth to the child is the child’s mother. Since the information for a birth certificate is taken at the hospital by the staff, it is usually considered a presumption that the parents listed on the birth certificate are the parents. Now the father, if he is on the birth certificate, is presumed to be the biological father of the child. That can always be challenged, unfortunately, for a variety of reasons and methods. The first method is filing a motion to determine paternity by the mother or the father. This is a motion and subsequent hearing that involves DNA testing to determine that the alleged father is the father of the child or children. Again there is a presumption on the birth certificate so my position is until that birth certificate is modified or amended by court order, both parents have equal rights to the children. Another method is by filing the same motion but both parents go to Court and swear under oath that the alleged father is the actual father. This is normally limited to situations where the father’s name is not listed on the birth certificate.

The second method that grants the parties equal rights to the child or children involves marriage. If a couple is married, whether it is a heterosexual or a homosexual couple, the person who is not the mother is considered as the legal parent of the child if the child was born during the course of the marriage. This is a legal presumption. Now I am sure everyone can understand why it is just a presumption and not strictly binding because, well, people cheat. A couple can separate and someone gets pregnant after the separation of the parties. If the presumed legal father or parent by marriage is not being allowed to be a parent because of the infidelity of the mother, then that will be an issue to be determined by the court through the motion to determine paternity or disestablish paternity. Unfortunately, child custody can get this complicated and, it frequently does, in the event that parents really do not get along with each other.

As mentioned above, in Chesapeake, Virginia Beach, Norfolk, Portsmouth, Suffolk and many other juvenile courts throughout Virginia, there is a procedure for determining paternity if that is an issue. This involves filing a petition or a motion with the court, paying the filing fee and the service of process fee. If both parties go to court and swear under oath that each is the parent of the child, and there will be nothing further done other than an order entered saying the paternity of the child. If someone other than the mother is disputing paternity and the motion has been filed, despite the 99.9% confidence level that person may have, the courts do not look too favorably on granting interim rights or visitation let alone custody until paternity is established. The reason for that is simple - the court does not want the child to establish a bond or a relationship with someone who may turn out not to be the parent.

Now admittedly this is a long and convoluted way of getting back to the original question which is what are the rights of each parent if they are unmarried as it pertains to a child custody and/or visitation. Again, the parents stand on equal rights. One is not the presumed parent or custodian able to access or deny access to the other parent to the child or children. Each person has the ability to see the child or children, vacation with a child or children, take the child or children to the doctor, access school and medical records, enroll the child in school, attend school functions and spend as much time as possible with the child. As it pertains to who has custody, the answer is no one. No one has custody until a Court determines that custody has been decided.

What does that mean in the short term? When child custody and Virginia is still in dispute, the police will not enforce anything about taking a child away from a presumed parent unless leaving the child poses a risk or threat of harm. The harm does not have to be imminent but more likely than not to occur. In those situations, law enforcement tends to defer and let the courts decide the matter as it is civil not criminal. If you are an unmarried parent since custody is equal, I strongly encourage you to get a custody order as soon as possible. The child custody order will prevent either parent from leaving with the child. If that happens without an Order, then there is nothing to do to stop them since each unmarried parent has the same custody rights as the other. This does not mean that they can travel out of the country with the child and hide the child in a foreign country relying on those laws. There are resources in place, even though I do not have full access to them for this post, that prohibit international travel at least of the airlines. I do not know how they apply at borders such as Canada or Mexico when someone tries to cross in a vehicle whether it is a boat, train or automobile. If there is a real possibility that someone could disappear with the child or children, I would suggest you immediately file your child custody petition and ask for an emergency hearing to prohibit the relocation or removal of the child from a specific location.

So what should I do when I am waiting to go to court? That is easier said than done. When you are waiting if you have the child, I would strongly encourage you to facilitate the relationship between the child and the other parent. The courts do not look favorably on a parent who has withheld a child from the other parent. There must be a good reason and usually the threat of harm or the realistic risk of harm is a good reason. Now I wanna I also understand there is a concern that the child will not be returned. And that is a legitimate concern. I would also encourage you to keep a notebook or a journal of the efforts that you made, the other person made and how long each person kept the child. This can go along way and showing the court and you are more willing to coparent than the other parent.

Time to talk about what you can and cannot do when you were an unmarried parent in Virginia. We will also talk about what you should not do. All of these are extremely important. We start with the basic premise that unmarried parents in Virginia have equal rights relative to their child or children. What that means is that neither person stands ahead of where has authority regarding custody, visitation or decisions that exceeds the other parent. Towards that end, both parents or either parent can enroll the child or children in school, can seek and receive medical advice and treatment, can move with the child, and can travel across state lines. It is extremely important to remember that these rights and opportunities lie on both sides so either parent has the same ability to do this as the other. There does not have to be notice, does not have to be permission, and does not even have to require an itinerary or plans being provided to the other parent.

What cannot be done is a much shorter list. These include obtaining medical treatment when the consent of both parents as required. Some medical providers will not perform medical treatment unless there is a court order saying who has the final decision or both parents agree on what is best for the child or children. If there is a dispute, the medical provider has the ability to refuse to provide that medical service. Now in emergency situations this rarely if ever happens. There is a mechanism where a medical provider can contact to Judge for approval, however, this is rarely utilized.

What you should not do is perhaps the most important aspect of it all. At some point in time, unmarried parents may seek to get an Order from the Court regarding custody and or visitation. In those situations, the Court will look at what it’s called the statutory best interest factors in order to make a decision as to what is best for the child or children. Some of these factors include the ability of the parents to communicate with one another, the ability of the parents to resolve disputes among us each other, and the relative willingness of the parent to maintain or even encourage the relationship with the other parent. If this happens, the Court will look at everything that has happened before. The Supreme Court of Virginia has said that history is the best prediction of the future. In custody and visitation cases, the Court looks at what has happened since the last final order has been entered. If there has never been an Order entered, what happens is that the Court looks at what has occurred since the beginning of the child’s life. If one parent is deliberately and frequently interfering with the other parent and that parent’s ability to have a relationship with the child and children, then the Court will not look too kindly on this. What you should do, in my humble opinion, is work with the other parent as much as possible as well as encourage the relationship between the child or children with the other parent. Not only does this make common sense, as well as will go a long way for the Court in Virginia when it comes to making a child custody or visitation termination, and it usually is and what’s the chat best interest.

There is a saying that I use that I believe is extremely important in these cases. The mental health professionals tell us that a happy, healthy relationship between a biological parent and a child is always in the child’s best interest of the child. If the relationship is neither happy nor healthy, there should be some sort of effort to “rehabilitate“ that relationship. Think of it as physical therapy but more in the realm of psychological therapy and or just spending time together. If the relationship cannot be rehabilitated, then the relationship probably needs to be amputated. This means denying access or having significantly limited access between the child or children and the parent. This is an extreme measure, however, it is one that is unfortunately necessary at times.

Hopefully these answered some of your questions or at least got you thinking about what the rights are in Virginia for unmarried or of unmarried parents. We also have more blog posts on different custody and visitation matters.

Now that you know a little about the custody or visitation rights of unmarried parents, what is next. It depends on what you want to do. If you do not want a Court Order, then nothing is next. If you want an Order, then you will need to go to the Court to file a Petition for custody and/or a Petition for Visitation. Well then there is a trial based upon the facts of the case. I will not go into details about this in this post but if you have questions about how visitation is determined in Virginia feel free to read this Blog post. If you have questions about how custody is determined in Virginia, feel free to read this Blog post. If you want to know how to start a child custody case in Virginia, well I have this Blog post for you. There may also be a Guardian ad Litem appointed and we discuss a Guardian ad Litem in this post.

If you have more questions or want to speak with me, you can always visit our Home page by clicking on this link to read more or to set up a free consultation with a lawyer. You can also either call us by clicking this link or text us using the yellow bubble on the screen. Either way our phone number is 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.

And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of when you found this post. Thank you for reading this and I appreciate your time.

Can You Write Your Own Separation Agreement in Virginia?

Can You Write Your Own Separation Agreement in Virginia?
Separation Agreement in Virginia

When we are having a consultation with new clients, it happens that some people ask the question – can I write my own separation agreement in Virginia. In trying to maintain our desire to provide straight forward answers, I will answer like this – yes, you can write your own separation agreement in Virginia. The next question is how do I write my own separation agreement. The following question is (or should be) should I write my own separation agreement in Virginia. Let me try to answer those as well.

First, we need to define what is a separation agreement in Virginia. A separation agreement also known as a Stipulation and Property Settlement Agreement is a contract for the end of your marriage. Pretty dramatic word choice but it is true. When couples get divorced, either they can talk control of everything or they can let someone who knows absolutely nothing about you or your family and is obligated to follow the law not what is necessarily best for your family, a judge, make the decision. By creating a separation agreement, Virginia divorce courts almost always follow the agreement made between the parties. There are some exceptions but I will save that for another post.

So when we say that you can write your own separation agreement we are being completely candid. Virginia does not require a formal form or format for a separation agreement. There are very few “magic words” that need to be in a separation agreement for it to be valid. There have been instances where people download “examples” from the Internet and copy that form as a separation agreement (which is a really bad idea since you have no idea who wrote it). There are also people that handwrite their own separation agreement and submit that to the Court for entry with the final Decree of Divorce. This is acceptable as well. If memory serves correctly, I believe that the Virginia Courts have affirmed a separation agreement written on a napkin at dinner. Now I do not suggest that you do this as it may not work and is definitely not the smartest way to draft a separation agreement.

The next question is – should I write my own separation agreement? Again, trying to be as candid as possible my recommendation is as follows – NO you should not write your own separation agreement. Kind of harsh words and, perhaps, a little self-serving since we pay our bills by drafting separation agreements for folks all over Virginia and beyond. Yes you probably should hire an attorney to draft your separation agreement as opposed to leaving it to chance. Again, you do not know who drafted the template, have no clue if it was valid in Court (as there are provisions that the Court cannot enter; that is for another post), nor whether it actually applies or covers the aspects of your case that you want covered.

A separation agreement should be as inclusive as possible. Since the separation agreement is a detailed document that often covers everything from assets, bank accounts, retirement, personal property, debts, spousal support, and custody and visitation of children. These separation agreements can also include health insurance, social security benefits, claiming of any child dependency credits, as well as almost anything else that you can think of including. Separation agreements tend to be over inclusive meaning you try to leave nothing to chance or for someone else to decide. There are also provisions in there to hold a person accountable if the agreement is not followed or someone files bankruptcy. Again – a separation agreement should leave nothing to chance.

Let me put it another way – if you think that I or almost any lawyer can come in and do your job as well as you without any training or experience except what an Internet search shows, then go for it. That may sound harsh but I firmly believe it – I cannot do your job as well as you can. Lawyers have education, bar exams, Continuing Legal Educations seminars, books written for lawyers, and experience in drafting as well as litigating separation agreements in Virginia. I am not trying to be sarcastic and, to be honest, you are free to go see any lawyer in Virginia to draft your separation agreement. Meaning I am not saying this to try to get you in the door. I firmly believe it. A good, experienced attorney will be able to discuss your particular situation, give you options, answer your questions, and then draft something that accomplishes your goals. We also have to take into consideration which Court you may end up in as different courts treat cases and handle issues differently. It can even vary from judge to judge in the same Courthouse! This is where an experienced lawyer as well as office staff can be of service better than any do-it-yourself website.

Having dealt with these issues for many years an experienced attorney can also help you try to predict variables and problems. This is extremely important because we are talking about your life. An easy example of contemplating a variable is this – a couple wants to get divorced and drafts their own separation agreement; they jointly own a house; they agree that Spouse 1 will either sell the house and split the equity with Spouse 2 or that Spouse 1 will buy out the equity of Spouse 2 and remove Spouse 2’s name from the house. There are three (2) issues that most lay people may not see at first blush. First, what is the timetable? Without one defined it could be twenty (20) days or twenty (20) years before Spouse 1 does what was agreed to in the separation agreement. This leaves Spouse 2 on a mortgage and deed along with the financial obligations that come with home ownership. Second, what is the date of valuation of the house? By this I mean what date does the equity to Spouse 2 become final. Again it could make a huge difference if it is twenty (20) days or twenty (20) years. Third, if Spouse 1 does a refinance how much equity goes to Spouse 2? When a house is sold there are costs involved that come out of the seller’s proceeds or equity. If the home is refinanced the amount needs or should be calculated regarding closing costs so everyone knows how much each person is going to get. Again, this is a barebones and example so please do not take it as legal advice or a tutorial. It is meant to illustrate a point that may not be apparent from “form” or “template”.

Now that you know about whether you can write your own separation agreement you may have another question about whether a separation agreement is required in Virginia. If so, please read this Blog post. If you would like to learn some of the benefits of having a separation agreement in Virginia, this Blog post should help.

I am not trying to scare you with this post. I am simply trying to answer the question that brought you here – can you write your own separation agreement in Virginia. The short answer still remains yes, however, that does not mean it is a good idea.

The Code of Virginia addresses marital agreements. In case you would like to read the law, here are a couple of links for you. The law allows for parties to enter into marital agreements under Virginia Code Section 20-155. It also allows the Court to incorporate the Agreement into an Order under Virginia Code Section 20-109.1.

I hope that this answers some of your questions at least regarding whether you can write your own separation agreement in Virginia or at least it gives you a good starting point. You can always visit our Separation Agreement page by clicking on this link.

If you have more questions or want to discuss your options, you can either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.

And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of at when you found this post. Thank you for reading this and I appreciate your time.

How Is Child Visitation Determined In Virginia?

How is visitation determined in Virginia
How is visitation determined in Virginia

A question that often comes across from potential clients and existing clients is how is child visitation determined in Virginia. While the direct answer may be easy and rather straight forward, the application of that answer regarding Virginia child visitation laws is not as simplistic. As always, please remember that this is not intended to replace competent legal advice. If you would like to speak with us, feel free to call us or text us at 757-454-2110 or fill out a Free Consultation Request form. If you would like to someone else, we understand completely but please make sure that the attorney knows about child visitation laws in Virginia.

There are some important underlying issues that need to be mentioned up front. First is the definitional section. The way that the Code defines words and phrases is important as that is what the Court is to follow. Virginia Code 20.124.1 is the definitional section and you can read it here. The Section that gives the Court the authority to enter these Order is in Virginia Code 20-124.2 and you can read it here.

So, let’s start with trying to answer the question. Child visitation determinations are initially governed by the Code of Virginia. The applicable statute is Virginia Code Section 20-124.3. Here is the link to that Code Section in case you would like to read it.

This statute gives the Court ten (10) factors to consider regarding child custody and visitation. They are as follows:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;

9. Any history of (i) family abuse as that term is defined in § 16.1-228; (ii) sexual abuse; (iii) child abuse; or (iv) an act of violence, force, or threat as defined in § 19.2-152.7:1 that occurred no earlier than 10 years prior to the date a petition is filed. If the court finds such a history or act, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

That’s it. Seems simple doesn’t it? Unfortunately, Virginia child visitation laws were not written for the general public to be able to simply understand. We cannot break it down in “plain English” in a simple post and we do apologize for that, however, as you can see it really is not that simple.

So the starting point for child visitation determinations in Virginia is this Code section. The law says that the Court has to consider these factors and relate to the parties the basis of the decision. What has to happen for you is that your attorney needs to make sure that you understand these factors and apply the facts of your particular situation towards these child visitation laws.

In other words, each case is different. There is no “one size fits all” when it comes to child visitation in Virginia. What we like to tell our clients is to think of your case as a puzzle – each fact is a particular piece of that puzzle. Some facts are edges or corner pieces meaning they are important to get established first to set the stage for the child visitation case. Other facts are important towards the whole, however, they may be pieces of blue sky or fluffy clouds – they are necessary to finish the puzzle, however, they are not the foundation points of the case. Now some attorneys and even judges try to put cases in a “track” to treat child visitation cases the same despite the specific facts of the situation. This is not right and we hope that you are not treated that way.

Going back, we said that the statute we listed was a start in determining child visitation in Virginia. We also said that all cases of child visitation are different and no two are the same. So what is the next step if the statute is first? Case law. By this we mean looking at prior cases deciding child visitation. This can be cases decided by the Circuit Courts, the Court of Appeals, or the Virginia Supreme Court. These cases create what we call precedent and give everyone guidance on the interpretation of the laws in Virginia. It helps judges, attorneys and even parents know what is important, what is the law, and how to present a case. So, again, even though we gave you the statute above there is still more story and the law is not as simple as the statute.

Lastly, the overwhelming majority of child visitation cases in Virginia are heard in the Juvenile & Domestic Relations Courts in Virginia. These are considered courts “not of record” meaning that there is no reported case opinions out there to help guide you in these Courts. That is why it is important, if you are going to hire an attorney, to hire one that is familiar with how the Court you are in handles cases. Each Court, each judge is different. What one Court deems important may not be important to another Court – even in the same courthouse. Predictability is a compliment to pay a Court and that is where the saying “the best lawyers know the judge” comes into play. An experienced child visitation lawyer should be able to give you an idea of how your Court will probably handle your case. No one can tell you exactly what is going to happen and any lawyer that guarantees you what will happen is probably telling you what you want to hear to get your money. At that point we would suggest getting a second opinion – not necessarily hiring another attorney but just double checking. An attorney that is looking out for your best interests should not mind you getting a second opinion.

If you would like to read some of the Code of Virginia regarding visitation, here are some links that can lead you in the right direction:

Virginia Code Section 20-124.3: Best interests of the child; visitation

Virginia Code Section 20-124.1: Definitions

Virginia Code Section 20-124.2: Court-ordered custody and visitation arrangements

Hopefully this post has been helpful in providing you with some guidance on how child visitation is determined or decided in Virginia. If nothing else, we hope that it provides some framework if you have a consultation with an attorney.

Again, remember that this is not intended to replace competent legal advice. If you would like to speak with us, feel free to call us or text us at 757-454-2110 or fill out a Free Consultation Request form. As always, we offer free initial consultations with an attorney.

Do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of at when you found this post. Thank you for reading this and I appreciate your time.

Protective Orders In Virginia – Family Abuse and Domestic Violence

Protective Order in Virginia

Protective Orders in Virginia are, unfortunately, a common occurrence. Domestic violence happens. Whether it is between a married couple, a couple that has a child in common or one that lives together it exists and is addressed by the laws of Virginia. The courts in Virginia Beach, Chesapeake, Portsmouth, Norfolk, Suffolk and the rest of the 757 area code, whether it is Juvenile & Domestic Relations Court or an appeal to Circuit Court, there are procedures to protect victims of domestic violence. It is unfortunate that these laws exist but, regrettably, they have to because that is the reality of life. In this post, we, as lawyers who handle protective orders and domestic violence issues, try to give you some basic information to assist in understanding the process. This particular post is designed for victims of domestic violence and in need of a protective order in Virginia. We will post later for persons that are accused of domestic violence and/or have a protective order issued against him/her. Again for legal reasons (lawyers always making things complicated), this is not specific legal advice and should not be taken as such; think of it as a primer on protective orders in Virginia to help answer questions or know what questions to ask.

For the victims of domestic violence your first contact should be with law enforcement. Depending on where you live, it may either be your local police department or the sheriff’s office. The reason for the difference is a bit complicated and based upon the Constitution for the Commonwealth of Virginia so we will not go into it in this post. So once law enforcement is involved, if they take out criminal charges for domestic assault and battery under Virginia Code §18.2-57.2 (sorry for the legalese) but odds are that they have requested before the magistrate an Emergency Protective Order. An Emergency Protective Order is a seventy-two (72) hour protective order that is, in essence, a “cooling off” period. Under Virginia Code §19.2-152.8, any Circuit Court judge, General District judge, Juvenile and Domestic Relations Court District Judge, or magistrate may issue an oral or written (usually written) ex parte (meaning with only one side there) protective order to protect the health or safety of any person. When law enforcement requests an emergency protective order on behalf of an alleged victim of domestic violence, the judge or magistrate may issue an Order, in accordance with Virginia Code §19.2-152.8, addressing any of the following:

1. Prohibiting acts of violence, force, or threat or any criminal offenses that result in the injury to person or property.

2. There can be a prohibition of contacts by the person who is the alleged perpetrator with the alleged victim or the alleged victim’s family or household members. There can also be a prohibition against the alleged perpetrator being in the physical process of the alleged victim or that person’s family or household members as the judge or magistrate deems necessary to protect those persons’ safety.

3. Any other conditions that the judge or the magistrate deems necessary to prevent any of the following: (i) any acts of violence, force or threat, (ii) criminal offenses resulting in injury to person or property, or (iii) any communication of any type or any other contact of any kind with the alleged victim.

4. Granting the alleged victim of the possession of any companion animal if that person meets the definition as the owner of the animal.

This Order lasts for seventy-two (72) hours. This can vary slightly based upon Court closures, holidays, or other limited situations. But what is the next step? So the next question is – where do we go from here?

Once an Emergency Protective Order is granted in Virginia, the next step, if the alleged victim wants to extend it, he/she goes to the Court and ask for a Preliminary Protective Order under Virginia Code §16.1-253.1. Since the authors of this post are family law attorneys in Virginia who are focusing this post on domestic violence in Virginia, we will talk about what happens under these circumstances. In this situation, the alleged victim would go by themselves or with an attorney, to the Juvenile and Domestic Relations District Court, typically the intake department, and “petition” for a Preliminary Protective Order under the laws of Virginia. This means filing a Petition for a Protective Order detailing what is being asked of the Court to grant. The petitioner needs to be careful as the Code of Virginia specifically states what the Court can Order. We highly suggest talking with an experience family law or protective order attorney in Virginia to determine what you can or cannot ask and what is reasonable or unreasonable. As an aside, at our office we do offer a free consultation.

The next thing that is being asked of the Petitioner is that he/she fills out an affidavit in support of the Petition for a Protective Order. This may be the most important step and should be approached with the utmost importance. This is what the Court bases its ruling on and could be the basis of questioning later down the road. If you have pictures or other evidence – bring it with you. Do not rely upon it “being on” your cell phone as most courts do not allow cell phones to be brought into Court. Take the time to print the pictures off as it could make all of the difference in your case. It is also important at this stage in the process as you may not be able to speak to or with the judge. Some courts in Virginia grant protective orders based upon the affidavit and/or exhibits. As such, you will want to be clear as to the abuse that allegedly occurred and detailed in any alleged injuries that you sustained or any threat that was levied against you. Some Courts do allow you to speak directly to the judge when requesting a Preliminary Protective Order. This may vary in any of the courts in Virginia and, specifically, in Virginia Beach, Chesapeake, Norfolk or the rest of the 757 based upon a variety of circumstances as well as the preference of the Court. You should always check with an attorney or the intake office. Should your request for a Preliminary Protective Order be granted, you will be served by the deputy with a copy of it and a copy will be served on the alleged abuser or Respondent by law enforcement.

The last part of the process is the trial on the issuance of a permanent Protective Order. This is a Protective Order issued by the Court in Virginia that is in effect for two (2) years or until modified by the Court. At this stage, both parties are present before the judge and a trial occurs. Evidence is presented, witnesses testify and cross-examined, and arguments are made. The Court has the authority to grant this for up to two (2) years and has guidance under the Code of Virginia as to what it can order. This is the stage where having an attorney may be the most important as this is the final hearing. The Court can dictate everything from contact to custody to support to exclusive possession of the home or car. There are more but this is just to illustrate how significant this hearing is to the process.

It is VERY important to remember that no protective order is active until the person that is subject of the Order has been served. Should he/she appear at your home, call the police immediately and inform law enforcement that there is an active protective order in place. They can both arrive and serve the party or, alternately, if the person has already been served they will likely be arrested for violating the terms of the protective order. Also of note is that anyone that is subject to a protective order CANNOT possess or transport any firearm for the duration of the protective order. If that is an issue, make sure the judge and/or law enforcement knows of this issue.

There are other remedies available. Each case is unique and has a unique set of circumstances. Having been practicing law for over twenty (20) years, I can tell you that the circumstances surrounding your request for a Protective Order will determine what the Judge will grant you and presenting those facts clearly and concisely is very important. If your request for a Protective Order is denied, there are still options available. Be aware – if the Petition for the Protective Order is denied, then there is no protective order in place.

The most important thing to remember is that a Protective Order is a piece of paper. While there are consequences for violating it and it affords you certain protections, if you are in a situation where the abuse is recurrent or you are in fear of your safety, the best thing to do is remove yourself from the situation. Also, most Courts have victim advocates to assist. Please talk to them about any services or programs that may be available to you. There are also a host of agencies in each city and programs to stop domestic violence. As the victim, remember that you have done nothing wrong. Take advantage of any program that you feel will make you feel safe and help you heal.

To help answer any lingering questions, here are some links to the Code of Virginia regarding Protective Orders. This link is the entire Chapter from the Code on this issue. It is a little overwhelming so I will go further with specific sections. Virginia Codes Section 19.2-152.7:1 provides definitions of the terms regarding a Protective Order. This is a very important Code Section as what one may define as "abuse" may not be what the law is that the Court is obligated to follow. As it pertains to Preliminary Protective Orders, this Code Section defines that term and what the Court has to find to issue the Order. When deciding whether to issue a two (2) year Protective Order, Virginia Code Section 19.2-152.10 is what governs.

Here at Brian A. Thomasson, P.L.C., we have represented many people seeking protection for abuse and domestic violence. While we may not understand exactly what you are going through, we have seen the ravages of domestic violence and we are here to help you through it. Our staff is kind, compassionate, caring and honest about what you can expect.

We hope that this answered any questions that you may have or at least give you a starting point for what questions to ask. If you would like to discuss this further, feel free to give us a call at 757-454-2110 or use the Contact Form at www.brianthomasson.com to set up a free consultation with a lawyer about your situation.

Is a Separation Agreement Required in Virginia?

Broken Heart Family

Quite frequently, people contact our office and ask us is a separation agreement required in Virginia? We are happy to answer them with the simplest answer there is – no. So no, a separation agreement is not required in Virginia. A separation agreement is not required for parties to be separated in Virginia. A separation agreement is not required for the parties to get a divorce in the courts of Virginia. So why should someone have a separation agreement or what is the benefit of a separation agreement in Virginia? Let me explain.

To explain it, we must first define a separation agreement. A separation agreement also known as a Stipulation and Property Settlement Agreement is a contract for the end of your marriage. Pretty dramatic word choice but it is true. When couples get divorced, either they can take control of everything or they can let someone who knows absolutely nothing about you or your family and is obligated to follow the law not what is necessarily best for your family, a judge, make the decision. By creating a separation agreement, Virginia divorce courts almost always follow the agreement made between the parties. There are some exceptions but I will save that for another post.

So now that you have a general overview you might be asking “well, what exactly is a separation agreement?”. This is a fair question. The separation agreement is a detailed document that often covers everything from assets, bank accounts, retirement, personal property, debts, spousal support, and custody and visitation of children. These separation agreements can also include health insurance, social security benefits, claiming of any child dependency credits, as well as almost anything else that you can think of including. Separation agreements tend to be overinclusive meaning you try to leave nothing to chance or for someone else to decide. There are also provisions in there to hold a person accountable if the agreement is not followed or someone files bankruptcy. Again – a separation agreement should leave nothing to chance.

So the question that drew you to this post is whether a separation agreement is required in Virginia. Again, the answer is no – a separation agreement is not required in Virginia to get a divorce. An oversimplification that might be easy to understand is this:

So do you have to have written separation agreement to have an uncontested divorce? No but it sure helps. A Complaint for divorce can be filed with the Circuit Court and if both parties sign the Final Decree of Divorce then, usually, the Court will enter that Decree and the divorce is granted. Now there are some steps in between but I hope that you did not think that this post was a “do it yourself” turorial on how to do your own divorce. This post is not even designed to give you specific legal advice. Each case is different and what may work for one case may not work for other cases. This is why we offer free initial consultations with a lawyer – so you can get fact specific advice to your case.

Now you are probably asking yourelf (or want to ask me) – if I don’t have to have a separation agreement in Virignia why should I get one. Three simple reasons (and I will save the best for last). First, you and your spouse are controlling all aspects of your divorce. How you live your life, your finances, and even parenting your children is controlled by you as opposed to two or three lawyers and a judge. Ist this good enough reason? If not, then the second reason should help. Second, it is quicker for you to get divorced. The Court knows from the moment that the divorce case is filed that it is uncontested. This means that it is a matter of pushing paperwork through the Court. No hearings, no motions, no settlement conferences. It makes everyone’s lives easier. Now the final reason may be the most attractive of all. The third reason that you should have a separation agreement in Virginia is that it saves you money! Yes – without having to pay lawyer fees, court reporter fees, and process server fees you save a substantial amount of money. Admittedly, there is a cost to a good and thorough separation agreement, however, that pales in comparison to the cost of a contested divorce.

Now that you know about whether a separation agreement is required in Virginia, you may have another question about whether you can write your own separation agreement. If so, please read this Blog post. If you would like to learn some of the benefits of having a separation agreement in Virginia, this Blog post should help.

I hope that this answers some of your questions at least regarding whether a separation agreement is required in Virginia or at least gives you a good starting point. You can always visit our Separation Agreement page by clicking on this link. If you have more questions or want to discuss your options, you can either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.

What Are the Benefits of a Separation Agreement in Virginia?

Separation Agreement Virginia

When discussing a separation agreement with a client or potential client the question usually comes up as to what the benefits are to having a separation agreement. This can be a lengthy answer and, sometimes, fact specific to each case. In this post I will try to hit some of the highlights or benefits that apply to almost everyone. Again, this is not meant to be an all-inclusive list and does not account for the specifics of any one case. If you have questions about your matter, I always suggest that you consult with competent attorney.

Before I begin, I want to define what a separation agreement in Virginia actually is so that we are on the same page. Admittedly, this is very similar to the description that I have used in other posts, however, I wanted to remain consistent. If you have read these posts feel free to skip this paragraph unless you want to refresh your memory about separation agreements in Virginia. If you have read other posts this may redundant and you can feel free to skip to the next section. A separation agreement also known as a Stipulation and Property Settlement Agreement is a contract for the end of your marriage. Pretty dramatic word choice but it is true. When couples get divorced, either they can talk control of everything or they can let someone who knows absolutely nothing about you or your family and is obligated to follow the law not what is necessarily best for your family, a judge, make the decision. By creating a separation agreement, Virginia divorce courts almost always follow the agreement made between the parties.

So when discussing the benefits of a separation agreement in Virginia we have to start with the biggest and most prominent benefit – control. Think about this for a moment, a divorce affects the most intimate aspects of your life. A judge can decide who lives in the marital home, who pays debts, how much support is paid, and even your ability to see or parent your children. Remember that the judge is the least informed person in any trial as the Court only gets to hear information provided by witnesses. Additionally, a judge is bound by the rules of evidence, civil procedure, and the laws applicable to your case. Lastly, a judge is human who comes to the case with their own opinion as to how things should occur or what should happen. By writing a separation agreement, the couple takes control away from the judge and puts it in their own hands. Control – of your finances, your living situation, your retirement, your children, and so much more.

Along those same lines, another benefit of a separation agreement in Virginia is that it establishes the rights as well as the obligations of each spouse. It determines, in an oversimplification, who is going to do what after the separation and the divorce. There should be no question, no ambiguity, no issue at all as to what each party gets and for what they are responsible. By doing this, if there are issues then there is a contract that can be enforced forcing a party to act or holding them accountable for failure to act. As part of the benefits of a separation agreement, there will be no “grey area” or question about individual responsibilities.

Another benefit of a separation agreement in Virginia is that it resolves any and all outstanding issues. Now, admittedly, this is a blanket statement and there can be exceptions if the couple does a partial separation agreement but generally speaking a separation agreement in Virginia tends to cover all issues. Again, nothing is left to a judge’s determination and the rights as well as the responsibilities of the parties is clear. If everything has been agreed to in a written separation agreement, the Virginia courts will routinely enter the divorce.

Yet another benefit of a separation agreement is that it allows the parties to agree to something that the Court cannot Order the parties to do. A judge’s authority is not unlimited. There are things that the Court can and cannot order. For example, absent medical incapacity a child support obligation ends at either eighteen or, if still in high school, nineteen or high school graduation whatever comes first. In a separation agreement, the parties can agree to a further date for child support to end – example, after graduation from college. Another example is the expense of college. A Court does not have the ability to Order that the either of the parties pay or contribute to college. This is often referred to as a moral obligation not a legal one. In a separation agreement, the parties can agree on college expenses. Two more examples are pre-college educational expenses or extra-curricular activities. If a child is going to private school or plays a travel sport, the Court cannot order either of the parties to pay for these expenses. However, one of the benefits of a separation agreement in Virginia is that the parties can agree to those costs and expenses.

Sometimes the parties can only work out some of their issues and not all of them. In this case, the parties can agree to a partial separation agreement to cover just those issues. Somes of the benefits are all of the above stated benefits. Another benefit is that it will reduce time and expense as some of the issues have been resolved. Lastly, perhaps the parties need more information or would like some time before agreeing on everything. Again, another benefit of a separation agreement or a partial separation agreement in Virginia.

Believe it or not, establishing a date of separation can prove to be troublesome. Even this seemingly simple matter can sometimes prove to be quite difficult. The date of separation is very important as it establishes financial responsibilities or benefits to the parties. In a separation agreement, the parties can agree to the date of separation. This makes things cleaner for the parties.

This is merely a partial list of benefits and is not designed to be all-inclusive. There are benefits that are situation specific. For your particular matter, I recommend contacting a competent family law attorney to ask your questions.

Now that you know about some of the benefits of a separation agreement in Virginia, you may have question as to whether a separation agreement is required in Virginia. If so, please read this Blog post. You may also have another question about whether you can write your own separation agreement. If so, please read this Blog post.

I hope that this answers some of your questions regarding the benefits of a separation agreement in Virginia as well as giving you a starting point. If you have more questions, you can always visit our Separation Agreement page by clicking on this link to read more or to set up a free consultation with a lawyer.

If you have more questions or want to discuss your options, you can either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.

And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of at when you found this post. Thank you for reading this and I appreciate your time.

What If My Husband Won’t Sign Divorce Papers In Virginia?

Husband Won't Sign Divorce Papers
Husband Won't Sign Divorce Papers

We actually get this question regularly. To answer the question directly – it does not matter and he does not have to sign divorce papers in Virginia. Now that we have answered the question, let's go into more details if you are interested.

In a nutshell, there are two "types" of divorce in Virginia - contested and uncontested divorces. A thumbnail difference between the two is whether the parties have a written separation agreement. If they do and there is nothing left for the Court to decide, you can get an uncontested divorce in Virginia by filing the paperwork, having your husband sign a waiver/acceptance of service of the divorce Complaint, and then submit the final decree with some other necessary documents for the Judge to sign off on to finalize your divorce. To answer the next question - no you do not actually have to come to Court to get divorced as everything can be done by paperwork.

Now for this to happen, yes your husband has to sign a separation agreement. So let's go to the next logical question - what happens if my husband signs a separation agreement but does not want to sign any of the Court documents? There is a solution for that as well. If he will not, for whatever reason, sign the Court paperwork to finalize the divorce then it gets served upon him and the process follows litigation deadlines. If after twenty-one (21) days your husband does not respond to the Complaint, then we notice (file a Motion for a divorce hearing with the Court) for entry of the Final Decree of Divorce. This is a hearing that you can also skip, however, we like to have our clients present (1) in case the Court has any questions about the divorce and (2) so our clients are actively involved in the process. If your husband does not respond to the paperwork and continues to play ostrich or just make life difficult, then we will ask the Court to enter the Final Decree of Divorce.

The next and hopefully last logical question is what if we do not have a written Separation Agreement? Well the answer is the same - no your husband does not have to sign divorce paperwork in Virginia. The process is similar to the one in the paragraph above but it takes a little bit longer. Each Court has a different process for this type of situation but basically you have to have a "mini" divorce hearing where you and your witness(es) will have to testify as to those things at issue whether it is custody, money, debt, etc. The hearing should not take long but it just has to be a little more formal given that the Court technically has to rule on everything. There are deadlines that have to be followed. For example, the divorce is filed, he is served with a copy of the Complaint and he has twenty-one (21) calendar days after being served to respond. If he does not respond, we notice (set) a hearing like in the previous paragraph and ask the Court to enter the divorce. The big difference aside from the procedure is that you have to wait one (1) calendar year from the date of separation to file the divorce.

This is merely a partial list of benefits and is not designed to be all-inclusive. There are benefits that are situation specific. For your particular matter, I recommend contacting a competent family law attorney to ask your questions.

We hope that this answered your question about whether your husband has to sign divorce papers in Virginia. If it did not, feel free to give us a call at 757-454-2110 or use the Contact Form at www.brianthomasson.com to set up a free consultation with a lawyer about your situation.

Also we have other blog posts about divorce and the divorce process. Feel free to read them and if you have questions let us know!

If you have questions as to whether a separation agreement is required in Virginia. If so, please read this Blog post. You may also have another question about whether you can write your own separation agreement. If so, please read this Blog post.

I hope that this answers some of your questions regarding whether your husband has to sign divorce papers as well as giving you a starting point. If you have more questions or want to speak with me, you can always visit our Contact page by clicking on this link to read more or to set up a free consultation with a lawyer.

If you have more questions or want to discuss your options, you can either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of at when you found this post. Thank you for reading this and I appreciate your time.

How Much Does A Divorce Lawyer Cost in Virginia?

BAT PLC Logo
BAT PLC Logo

One of the questions that we get asked is how much does a divorce lawyer cost in Virginia or that we get through Google is how much does a divorce lawyer cost in VA? Unfortunately there is no right answer but there are some factors to consider.

Like any profession, lawyers and attorneys charge different rates. Whether it is hourly rates or flat fees there are no “set costs” or “suggested retail price” for lawyers and law firms. So when asked “how much does a divorce lawyer cost in VA” that answer is “it depends”.

Divorces are usually done with an hourly fee structure and the payment of a retainer. Think of a retainer as a checking account – an amount that is paid to the law firm being held for work or expenses performed on your behalf. So once the retainer is paid the lawyer or law firm can only pull money out of that retainer as earned or needed (sorry for the oversimplification). How the retainer is spent is usually governed by the contract for services signed between you and the law firm. Now the way it usually works for divorce lawyers as well as other types of retained matters is that if the case is over and there is money left on the account, then the client is entitled to a refund. If work is on-going and the retainer has been exhausted, then you will have to make a payment. How much that payment is and when it is due is, again, part of the contract for services.

So the next question is usually how much of a retainer does a divorce lawyer require? Again, it depends. Some firms have standard amounts while others tend to be more fact driven by the facts of the divorce provided at the consultation. Be careful with this situation and you are allowed to ask if the retainer requested is a standard amount or specific to your case. Personally we have a standard amount that we ask for on all of our divorce cases. We do this because we do not want clients believing or even thinking that they are treated like a cash register and that the more money they have the more we charge. We also do this because no matter which attorney you speak with you will get a consistent answer.

The next thing that people look at is the hourly rates of divorce lawyers. Again, this also depends. It can depend upon a variety of factors but usually experience is the predominant one. Quite often, the more experienced the attorney the higher the rates. The problem is that there is no real consistency for lawyers with the same amount of experience. Quite often there are less experienced lawyers who are charging more than more experienced lawyers. A fair question to ask is how the lawyer came to put a value on his/her services.

Another factor to consider is the cost of staff for divorce lawyers. Most lawyers have secretaries, assistants, paralegals, runners, couriers, office managers, etc., who help him/her get things done. These folks want to get paid for their time when they go to work each day. It would be unfair to the client to charge the hourly rate for the divorce lawyer when the work is performed by someone else. So to manage the situation, most contracts or agreements account for “staff” or the non-lawyer hourly rates. These are usually less than the hourly rates of the lawyers and, since most of the non-lawyering work is done by them, those savings can be passed on to the client.

The next question that should be asked of divorce lawyers when trying to figure out if how much it costs is actually asking about costs. Now the “costs” that I am talking about are hard costs. How much for postage, how much are filing fees, how much are copies, etc. These need to be addressed and don’t be shy about asking about it. For example, if the firm operates digitally for the most part and documents are scanned in, is there a charge for this? Are you being charged per scan plus the time of the person scanning?

Lastly, you should ask how you are billed. This encompasses two parts. The first is how the billable time is broken down. By this, are you billed at 1/10th of an hour increments, 1/4 or 1/3 of an hour? Is there a minimum time for matters despite how long they actually take or it takes to perform the task? The second is when am I billed for stuff? This is usually the easy one and most consistent one. It is normally this simple – if someone is working on your matter then you are probably getting billed for it. That makes perfect sense. It is also quite simple and fair. You would not want to be billed when someone is working on another person’s file and vice versa.

This is about the best advice that we can provide for people that want to know how much a divorce lawyer costs in Virginia. While we can speak for our office, we cannot speak for others. So I guess the purpose of this post is to provide you an understanding so going into the consultation and hiring the divorce lawyer you have more education. We hope that we have at least given you something to think about even though we may not have answered your question with this post.

We hope that this answered any questions that you may have or at least give you a starting point for what questions to ask. If you would like to discuss this further, feel free to give us a call or text at 757-454-2110 or use our Contact Form at www.brianthomasson.com/consult to set up a free consultation with a lawyer about your situation.

Also we have other blog posts about divorce and the divorce process. Feel free to read them and if you have questions let us know!

What If My Wife Won’t Sign Divorce Papers In Virginia?

Wife Won't Sign Divorce Papers
Wife Won't Sign Divorce Papers

We actually get this question with some regularity. To answer the question directly – it does not matter and she does not have to sign divorce papers in Virginia. Now that we have answered the question, let's go into more details if you are interested.

In a nutshell, there are two "types" of divorce in Virginia - contested and uncontested divorces. A thumbnail difference between the two is whether the parties have a written separation agreement. If they do and there is nothing left for the Court to decide, you can get an uncontested divorce in Virginia by filing the paperwork, having your wife sign a waiver/acceptance of service of the divorce Complaint, and then submit the final decree with some other necessary documents for the Judge to sign off on to finalize your divorce. To answer the next question - no you do not actually have to come to Court to get divorced as everything can be done by paperwork.

Now for this to happen, yes your wife has to sign a separation agreement. So let's go to the next logical question - what happens if my wife signs a separation agreement but does not want to sign any of the Court documents? There is a solution for that as well. If she will not, for whatever reason, sign the Court paperwork to finalize the divorce then it gets served upon her and the process follows litigation deadlines. If after twenty-one (21) days your wife does not respond to the Complaint, then we notice (file a Motion for a divorce hearing with the Court) for entry of the Final Decree of Divorce. This is a hearing that you can also skip, however, we like to have our clients present (1) in case the Court has any questions about the divorce and (2) so our clients are actively involved in the process. If your wife does not respond to the paperwork and continues to play ostrich or just make life difficult, then we will ask the Court to enter the Final Decree of Divorce.

The next and hopefully last logical question is what if we do not have a written Separation Agreement? Well the answer is the same - no your wife does not have to sign divorce paperwork in Virginia. The process is similar to the one in the paragraph above but it takes a little bit longer. Each Court has a different process for this type of situation but basically you have to have a "mini" divorce hearing where you and your witness(es) will have to testify as to those things at issue whether it is custody, money, debt, etc. The hearing should not take long but it just has to be a little more formal given that the Court technically has to rule on everything. There are deadlines that have to be followed. For example, the divorce is filed, she is served with a copy of the Complaint and she has twenty-one (21) calendar days after being served to respond. If she does not respond, we notice (set) a hearing like in the previous paragraph and ask the Court to enter the divorce. The big difference aside from the procedure is that you have to wait one (1) calendar year from the date of separation to file the divorce.

This is merely a partial list of benefits and is not designed to be all-inclusive. There are answers that are situation specific. For your particular matter, I recommend contacting a competent family law attorney to ask your questions.

We hope that this answered your question about whether your wife has to sign divorce papers in Virginia. If it did not, feel free to give us a call or text at 757-454-2110 or use the Contact Form at https://brianthomasson.com/contact/ to set up a free consultation with a lawyer about your situation.

Also we have other blog posts about divorce and the divorce process. Feel free to read them and if you have questions let us know!

If you have questions as to whether a separation agreement is required in Virginia. If so, please read this Blog post. You may also have another question about whether you can write your own separation agreement. If so, please read this Blog post.

If you would like to read some of the laws of Virginia regarding divorce, I will provide some links and descriptors to the Code of Virginia. When looking at the grounds for divorce, Virginia Code Section 20-91 provides that to the Court. As it pertains to starting the divorce, Virginia Code Section 20-99 defines that process. If your spouse will not sign paperwork, well this Code Section defines how to serve the paperwork. When paperwork is served on a person who will not voluntarily accept it, these are the Rules of the Supreme Court of Virginia. It is pretty cumbersome so please skip to Rule 3:19 (sorry that I could not provide a link directly to it).

If you have more questions or want to speak with me, you can always visit our Home page by clicking on this link to read more or to set up a free consultation with a lawyer. You can also either call or text us at 757-454-2110. We also have on our site an online consultation form. Again, our initial consultation with a lawyer about your case is free so it costs you nothing to call and ask your questions.And do not forget to scroll to the bottom as there may be related posts that answer other questions that you have or did not think of when you found this post. Thank you for reading this and I appreciate your time.