What Can the Court Do While My Divorce Case is Pending?

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When a couple first starts down the path toward separation and divorce, it can be a scary and uncertain time. There are many changes with regard to finances, living situations, as well as circumstances surrounding the support and care of children. In addition, there is often a gap in time between the filing of an initial divorce case and the final trial before a Judge. To address the uncertainty during this time, Virginia courts have the power to determine issues on a pendente lite basis, or “pending litigation.” In other words, the Court can make some temporary rulings to assist the parties while their case is pending.

If you find yourself filing for divorce, know that you are not alone. Our experienced Fairfax divorce attorney from Curran Moher Weis has successfully helped clients through the court process, and is always ready to help you. call now and let´s find together the best resolution for your case.

Temporary Custody Issues

The Virginia pendente lite statute permits a Court to make a temporary determination regarding custody and visitation. Not all Courts in Northern Virginia, however, will hear custody and visitation issues on a temporary basis absent an emergency. While there are a number of situations that can constitute an emergency, some include the circumstance where one parent is completely withholding the children from the other or where there is danger to a child.

Temporary Support Issues

On a temporary basis, Virginia Courts can order that one parent pay the other spousal or child support. In many Northern Virginia jurisdictions, temporary support is based on spousal and child support guidelines. Temporary support is intended to allow each party to support himself or herself, as well as the children, until a final support determination is made by the Court or agreed-upon by the couple.

Temporary Property Issues

On a temporary basis, there are only certain issues regarding property that a Court can address. For one, a Court can order that one spouse have exclusive use and possession of the family residence. This requires that the other spouse live elsewhere and refrain from entering the family residence while the case is pending.

In addition, the Court can order that each party preserve his or her estate, or the marital estate. While this may not involve a “freezing” of accounts through financial institutions, the purpose is that neither party spends or dissipates his or her assets while the divorce case is pending so that any such assets are preserved for property division at a final trial

Other Temporary Issues

There are a handful of other actions that a Virginia Court can take on a temporary basis pursuant to the applicable code section – § 20-103. These include temporary determinations regarding medical and dental insurance, life insurance, and attorney’s fees.

 

Discuss Your Pendente Lite Divorce Issues with a Trusted Attorney

The firm of Curran Moher Weis has successfully helped clients navigate the period when a divorce case is pending, and we are here to help you. Contact our experienced Fairfax divorce attorney today.


Separation in Virginia

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You may have heard that some Virginia divorces require you and your spouse to live separately and apart for a period of time, but what does it mean to be “separated” in Virginia for purposes of divorce?

We encourage you to look for the best legal assistance you can get from a divorce attorney to help in your case and fight for your best interests. Our dedicated attorneys at Curran Moher Weis have over a decade of experience handling the most difficult divorce and family law-related cases in Northern Virginia and nearby cities.

Grounds for Divorce Based on Separation

Virginia has two grounds for divorce based on parties living separate and apart for a period of time. First, if you have no minor children and have a signed settlement agreement, the law requires that you and your spouse be separated for at least 6 months before you can file for and obtain a divorce. If you have minor children or do not have a signed settlement agreement, you must be separated from your spouse for 1 year or more before you can proceed with a divorce. While Virginia has grounds for divorce based on fault, meeting the requisite separation period allows a litigant to proceed with a no-fault divorce.

 

What Does it Mean to be Separated?

Under Virginia law, a married couple is separated, generally, when one spouse has the intent to separate and the parties physically live separate and apart. In most cases, the intent to separate must be communicated to the other spouse, but there are situations where it can be shown through action or inaction.

 

When it comes to living separately and apart, the clearest separation is when spouses live in two separate homes. This includes a spouse moving out to a new home, or moving in with a friend or family member.

 

However, for many divorcing couples, the prospect of having to support two households without a financial plan in place is untenable and the idea that parents may have to abruptly move away from their children while adjusting to separation is unthinkable. In these situations and others, Virginia divorce law permits an in-home separation. This means that the couple may live under the same roof but will still be considered to be separated for purposes of divorce.

 

Oftentimes, this requires a divorcing couple to sleep in separate bedrooms, separate household finances, do their own laundry, or a myriad of other behaviors that will support “separate” living circumstances. In addition, both or one spouse may need to have a friend or family member visit the home who can attest to the couple’s separate living situation within the home.

Learn How a Fairfax Divorce Attorney Near You Can Help

If you are wondering whether your circumstances will qualify as living separate and apart, or you want to commence a separation from your spouse, you will want to discuss your particular situation with a divorce attorney. A Curran Moher Weis attorney can advise you on separation from your spouse. Contact us to learn about our services.


How is Paternity Established When a Child is Born to Unmarried Persons?

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In Virginia, the Juvenile and Domestic Relations District Courts have the authority to resolve custody and visitation of a child when the child’s parents are not married. The Court applies the same standard as it does when it determines custody and visitation of a child born of a marriage, which is to examine the best interests of the child. When parents are unmarried, however, a father may have to establish that the child is his, which can be done in a number of ways.

Voluntary Acknowledgement of Paternity (AOP)

Unmarried parents can voluntarily acknowledge the paternity of a child by signing a Voluntary Acknowledge of Paternity (AOP) prior to discharge from the hospital. This is a form to be filled out by the child’s parents and will suffice to allow the father’s name to be listed on the child’s birth certificate. Each parent has the right to rescind the AOP within the earlier of 60 days from the date of signing the AOP or the date of entry of an administrative or court order relating to the child in which the parent is a party.

Petition to Establish Paternity

If the parents do not sign an AOP, either parent can petition the Juvenile and Domestic Relations District Court to establish paternity through DNA testing. If the DNA test confirms that the man is the biological father within a 98% probability, the Court will issue an order establishing paternity and the father may then petition the court for custody and/or visitation.

Establishing Paternity through the Division of Child Support Enforcement

Another method of establishing paternity is through the Division of Child Support Enforcement. Either parent can open a child support case with the Division and the Division will establish paternity through DNA testing. This method, however, does not grant a father rights of custody/visitation with the child, as the Division has no authority to establish a visitation schedule for either parent. If paternity is established through the Division, unmarried parents still need to petition the Juvenile and Domestic Relations District Courts to set a custody and visitation schedule for the child.

Fairfax Child Custody Lawyers Standing By

Establishing paternity and obtaining custody of or visitation with a child are two separate procedures. The attorneys at Curran Moher Weis are experienced in handling cases involving both the establishment of paternity as well as custody and visitation matters. Contact our office online or by calling (571) 328-5020 to schedule a consultation with an experienced family law attorney.


Financial Implications of a Divorce: What are the financial implications of divorce?

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Divorce is considered one of the top five most stressful life events.  Divorce turns your entire world upside-down—your family, your living situation, and, yes, your finances as well.  In fact, financial stress is one of the top five causes of divorce.  This means a lot of divorcing couples were already dealing with financial issues before turning to the divorce court for relief.

Virginia Divides Marital Assets Equitably Not Equally

Virginia divides marital assets in a divorce based on what is equitable, not on what is “equal” (50/50). Courts in Virginia evaluate several things in determining asset division when a couple of divorces, including, among other things:

 

  1. The contributions each party made to the well-being of the family and the acquisition of assets;
  2. The length of time the couple was married;
  3. Age and health of both people;
  4. The circumstances contributing to the dissolution of the marriage; and
  5. The use of the marital property for nonmarital purposes

 

Based on these factors, Virginia will decide what each person “deserves” in the dividing of the assets. This means a husband who single-handedly built a successful business enterprise may walk away with more than a wife who spent most of the marriage unemployed going from job to job, for example.

 

Protecting Your Assets in a Divorce

How can you help your attorney prepare to address the financial issues in your divorce?  Consider assisting your attorney in the following ways?

 

  1. Gather 12-24 months of checking and savings account statements from each of your accounts;
  2. Gather 12-24 months of credit card statements from each of your accounts;
  3. Gather 12-24 months of retirement and investment account statements from each of your accounts;
  4. Locate and provide your past 3 Federal and State Tax returns;
  5. Locate and provide any statement reflecting large gifts you received from anyone other than your spouse or large payments you made during the marriage;
  6. Locate and provide statements of any debts you have; and
  7. Create a family asset sheet listing your family’s assets

Do You Need a Lawyer to help with Property Division?

Some of the things an experienced property division attorney can help you with include:

 

  1. How to legally and fairly handle anything you acquired after your spouse moved out;
  2. How to have one spouse’s name removed from the deeds to your cars, house, accounts, etc;
  3. How to divide up retirement accounts;

 

We also highly recommend consulting a financial expert (CPA, financial planner) to further navigate the financial implications of a Virginia divorce.

Protect Yourself with a Fairfax Divorce Lawyer

Lawyers can be expensive, but often not hiring a lawyer can be even more expensive.  Curran Moher Weis helps clients navigate complicated property division cases.   Contact us today to get the insights you need to make the most of your property division case.


How Do I Modify Child Support in Virginia?

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The circumstances that guided your original child support order can change over time, and a modification – or adjustment – may be necessary.  To determine what modification, if any, should be made to your current child support order, it is important to understand how child support is calculated.

Virginia courts use the “Income Shares Model” to calculate child support. The Income Shares Model considers the gross income of both parties in an effort to ensure the child is receiving the same proportion of parental income that he or she would have received if the child lived in a two-parent household. A basic child support obligation is computed using the Virginia Child Support Guidelines, which factor in the gross incomes of each parent, medical insurance premiums paid for the child, the number of children for which support is paid, work-related childcare costs, and the number of days each parent has the child. Although the “guideline amount” is presumptively correct, you can deviate from the guideline amount if the calculated support amount is unjust or inappropriate.

A child support modification can be initiated by either parent, the court, or the Department of Social Services. The primary reasons for a support modification often include an increase or decrease in a parent’s income, work-related childcare costs, or medical insurance costs, a change in physical custody, and an increase in a child’s needs from any physical, emotional, or medical condition. If these changes in circumstances are material and in the best interest of the child, the court may modify the child support amount.

If you believe that you need to pursue a child support modification, or if your child’s parent is seeking one, the attorneys at Curran Moher Weis have several years’ experience handling child support matters and will ensure your rights are protected throughout the modification process. Contact us now!


How Do I File for Divorce in Virginia?

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Whether you are considering a divorce or responding to divorce papers served by your spouse, it’s important to know the basic requirements for a Virginia divorce. Because the divorce process is complicated, working closely with an experienced attorney at Curran Moher Weis is the surest path forward.

 

Virginia divorce actions are filed in its circuit courts. In order to file for a divorce in Virginia, either you or your spouse must have been an actual and bona fide resident and domiciliary of Virginia for at least 6 months preceding the filing of the lawsuit. You cannot file for divorce unless you have been living separate and apart with the intention to divorce for a certain period of time, as follows:

 

  1. If you and your divorcing spouse do not have minor children, you cannot file until after you’ve been separated for at least six months and have executed a written property settlement agreement.
  2. If you and your divorcing spouse do not have minor children, you cannot file a no-fault divorce until you’ve been separated for at least one year, unless you qualify to file on fault grounds such as adultery.

 

The initial document that gets filed with the court is called the “Complaint for Divorce.” The Complaint for Divorce contains information regarding you, your spouse, your children, and the reasons for your divorce. The Complaint for Divorce includes a detailed “prayer for relief” section, wherein you ask the court to make certain awards or determinations because of your divorce. The prayer for relief section generally includes a request for the court to determine child support, spousal support, the custody and visitation of any child, and the division of any property and debts. The Complaint for Divorce must be “served” on the other spouse so that he or she has noticed that there is a pending divorce action. Service is typically accomplished by the sheriff or a private process server. In lieu of formal service, the other spouse may also formally “accept” the service of process by signing the proof of service before a notary.

The attorneys at Curran Moher Weis are able to assist you with the filing of your Complaint for Divorce or responding to your spouse’s Complaint for Divorce. Call now for assistance.


Common Family Law Issues

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The most common family law issues include:

  1. Divorce/Annulments – Terminating marriages through divorce or annulments. 
  2. Prenuptial/Premarital Agreements – Agreements between prospective spouses made in contemplation of marriage.
  3. Child Support – Payments made by a parent to cover the child’s basic living expenses. 
  4. Alimony – Also known as “spousal support” Payments made by a spouse to assist the other spouse to maintain their standard of living after a divorce.
  5. Adoption – Parental placement, step-parent, close relative, and adult adoptions.  
  6. Paternity – Establishing the father of the child. 
  7. Child Custody and Visitation –  Establishing a formal parenting plan after considering the best interests of the child.
  8. Property Division – Dividing assets, debts, and other liabilities in a divorce.

If you have questions about any of these common family law issues, contact an attorney from Curran Moher Weis today.


Why You Need a Lawyer to Draft Your Premarital Agreement?

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agreement (also known as prenuptial agreements or prenups), but it is a wise investment there can often be some considerable disagreement between couples about the need for a premarital t.  A premarital agreement can outline spousal support terms and what happens to a couples’ assets and liabilities in the event of a separation, divorce, death, or the occurrence or nonoccurrence of a certain event. Deciding on these issues by agreement prior to marriage can help avoid arguments and costly litigation at the time of the divorce. If a premarital agreement is not executed, Virginia law will apply to the division of your assets and debts and the payment of spousal support.

Why You Want a Lawyer from Curran Moher Weis to Draft or Review Your Premarital Agreement

Virginia courts heavily scrutinize premarital agreements because of the significant impact that such an agreement has on a person’s property and support rights. Therefore, drafting a valid and enforceable premarital agreement is very important. The attorneys at Curran Moher Weis will ensure the following:

  1. Your premarital agreement was executed voluntarily;
  2. Fair and reasonable disclosures of the property and financial obligations of each party were provided; and
  3. Your premarital agreement does not contain provisions in violation of public policy.

 

Schedule a Free Consultation with the Best Fairfax Family Law Attorney Near You

If you are planning on marrying, contact an attorney at Curran Moher Weis to draft or review your premarital agreement.


What Are Grounds for Divorce in Virginia?

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Unlike some states, Virginia allows both no-fault and fault-based divorces. A no-fault divorce is commonly one based upon living separate and apart for an uninterrupted period of at least one year. A fault-based divorce is one that is based on a claim that your spouse’s actions caused the dissolution of your marriage. The following “grounds for divorce” are often alleged in divorce cases:

Adultery – Engaging in sexual intercourse with another person who is not your spouse. Emotional affairs do not constitute adultery.

Sodomy – Committing oral or anal intercourse with another person that is not your spouse.

Buggery –Engaging in sexual intercourse with an animal.

Willful Desertion or Abandonment – Breaking off cohabitation against the wishes of the other spouse. However, if a spouse leaves the marriage because the other spouse has committed acts of cruelty, the spouse is not guilty of willful desertion or Abandonment.

Conviction of a Felony – If your spouse is convicted of a felony and sentenced to prison for a period in excess of one year, and you do not resume living together after the prison sentence, your spouse’s felony can constitute a ground for divorce.

Cruelty – Acting in a manner that causes bodily harm and renders living together unsafe

If you are considering filing for divorce, it is important to contact immediately an attorney at Curran Moher Weis to determine if the circumstances and factors that contributed to the dissolution of your marriage allow you to file for fault-based divorce in Virginia. If your spouse has filed a fault-based divorce action against you, our attorneys will discuss with you, what, if any, defenses you may have to their alleged grounds for divorce.


Custody Concerns for a New School Year

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Each school year poses new challenges: coordinating bus schedules, after-school programs, and sports practices. Factor in two people with busy schedules who are sharing custody of their child, and it is enough to give you a headache.

Child custody is defined as “the care, control, and maintenance of a child.” The court has to decide custody arrangements based on the needs of your child. Even if both parties have come to a mutual agreement on sharing custody, the court may still determine other arrangements will better serve your child.

As the upcoming school year approaches, if you find yourself struggling to keep up with your child’s activities, don’t despair. If your current custody schedule is problematic, consult an experienced Fairfax child custody attorney to fully understand your parental rights.

What Factors Does the Court Use to Determine Child Custody?

In determining the best interests of the child, the court will make a determination based on the following factors, as set out in Virginia Code § 20-124.3:

  1. The age and physical and mental condition of the child;
  2. The age and physical and mental condition of each parent;
  3. The relationship existing between each parent and each child;
  4. The needs of the child, giving due consideration to other important relationships of the child;
  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;
  7. The relative willingness and demonstrated the ability of each parent to maintain a close and continuing relationship with 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 abuse that occurred no earlier than 10 years prior to the date a petition is filed;
  10. Such other factors the court deems necessary and proper to the determination.

In What Circumstances Will a Court Modify a Custody Order?

In Virginia, the Juvenile and Domestic Relations District Court handles all child custody matters. The court will not consider a change in the custody order until at least six months have passed since the original custody order was issued.

While new custody matters are generally filed in the county/state where the child has resided for the past six months, in Fairfax County, you must call Domestic Relations if you are seeking to modify a court order. You are also required to bring the original order to your appointment.

If both parties cannot agree on a modified schedule, the court will refer both parties to mediation to resolve their differences before scheduling a hearing. The court will only schedule the hearing if a judge decides that there has been a “material change in circumstances.”

A material change in circumstances refers to a significant shift that affects the child’s health and well-being. For example, if a child’s soccer schedule and the location of practices have been changed, a court may deem that new arrangements need to be put in place.

There is no limit to how many times the court can modify an order. However, you should only request that the court modify custody arrangements if you feel that it will be in the best interest of your child.

Dedicated Fairfax Family Law Attorneys Near You

With so much conflicting advice, you need guidance on what modifications should be made to your custody order. The court system can be fickle, and you need the best child custody lawyer in Fairfax and nearby to handle the red tape. Discover why U.S. News and World Report have given us the distinction of “best lawyers, best law firms” for eight years running. Contact Curran Moher Weis today to schedule your consultation.