Custody & Visitation/Timesharing Modification

Family meeting with attorneyA motion to modify custody may be filed by a party at any time after an initial child custody determination. A successful motion will be filed only if the person seeking the change in child custody can demonstrate to the court that there has been a change in circumstances since the court's last determination or order and that those changes warrant a change in custody because such a change is in the child's best interests.

 

For more information, schedule a consultation or call 703.279.5140.

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FAQ

Why do I need a lawyer if my spouse and I agree to settle issues amicably?

Even couples who agree to divorce amicably often need help resolving difficult financial and child custody issues. In collaborative divorce, each party is guided to an informed agreement by professionals experienced in the process. Having an advocate for the fair settlement of all issues can lead to a more satisfactory settlement to both parties and less emotional strife.

How is collaborative divorce different from mediation?

The mediator is a neutral while in a collaborative divorce each party as his/her own counsel whose role is to represent only his or her client. The collaboratively trained attorney provides legal advice to the parties, where the mediator cannot.

How much does it cost?

Collaborative divorce is often less expensive because the parties and their attorneys work in a productive, forward focused manner, which is not necessarily the case in an adversarial process. The emotional costs are lower as well.

Is this process for anyone who wants an uncontested divorce?

Generally, yes. However, the collaborative attorney will assess with his or her client as to the appropriateness of the process.

What happens if an agreement is not reached in the collaborative process?

If the parties terminate the process, they can choose another method of resolution. However, the collaborative attorneys cannot represent the client in a contested litigation.

Can't my attorney just talk to the other attorney?

Yes, and they often do. And if they can work things out to their clients' satisfaction, there is no need for a mediator.

If you act as the mediator, can you also be counsel for one of us?

No, the mediator must be unbiased and that is in conflict with a counsel's role as advocate. 

Do I need a legal document to be separated?

No. Separation begins whenever the husband and wife begin living separately, in two households (actual separation), or living separately in the same household (constructive separation), and at least one party has the intent that the separation will be permanent and will ultimately lead to divorce.

Can we live separately in the same house?

Yes, but you will be required to demonstrate, through information that you and your witness provide, that while you remained living in the home together, you: 

  • Established and maintained intent to separate permanently or indefinitely.
  • Have separate bedrooms.
  • Have no romantic or sexual intimacy.
  • Stop wearing wedding rings.
  • Each shop for your own food, prepare own meals; neither shops for the other as to any categories of items (clothing other necessities, etc.)
  • Do not use the other spouse's food or other purchases.
  • Do not eat meals together (exception: holidays or children's birthdays).
  • Are is responsible for caring for each of your own space within the home, such as bedroom.
  • Each do your own laundry.
  • Establish separate checking accounts.
  • Cease socializing (e.g., do not attend parties, movies, theater, etc., together).
  • Do not attend church together.
  • Interact as parents (when there are minor children) only where strictly necessary from the children's perspective and their well-being; e.g., it would be acceptable for the parents to go together to a meeting with a school official relative to problems confronting a particular child, but less appropriate for the parents to ride together and sit together at a child's school play or soccer game.
  • Cease gift-giving between spouses for such occasions as birthdays, Christmas, anniversary, Valentine's Day, etc.
  • Make known to close associates, relatives, etc., that the parties are martially separated within the residence, though continuing to reside under the same roof.
  • Have a third party come to the home from time to time to personally observe the two spouses' separate and distinct living quarters (bedrooms, bathrooms, etc.).
  • Utilize separate entrances to residence, if feasible.
  • Be prepared to explain reason(s) for effecting separation under same roof (e.g., financial considerations; unavailability of successor residence,; to ease children's transition to parental separation; etc.).

If you and your spouse are considering cohabitation during a legal separation or divorce, the above list will give you an idea of what "Separation Under the Same Roof" entails.

Can the court consider additional cost factors in setting child support?

Yes, they are called deviation factors. They can include the costs of private school, tutors, and the like.

What does the visitation/timesharing schedule have to do with child support?

If the child or children are with one parent for 90 or more days, a different mathematical calculation is used. If there are two or more children and the children reside primarily in different households, a calculation to address that visitation/timesharing arrangement is used.

Why is child support determined after spousal support?

Because any amount of spousal support payable from one parent to the other is added to the receiver's income and deducted from the payor's income to determine the parties' incomes for the child support calculation.

If a mortgage contribution is being paid, is that factored into income like spousal support?

No, because it is to paid to maintain the asset, not to provide support for a party.

What if the other parent makes less than they should or could?

If they used to earn more and now earn less due to decisions or actions they have taken, or they choose to be under employed, the court can treat them as having higher earnings.

What if there are other children to support?

If the person writing the check is supporting another child, a different calculation is used to keep some of that parent's income in their household for the benefit of the other child.

What if my spouse and I have trouble reaching joint decisions regarding the children?

The court may decide to give one parent ultimate decision making authority after full consultation with the other parent, or a parent may be granted sole legal custody.

At what age can the child decide where they want to live?

Technically speaking, at the age of majority, which is 18 in Virginia. Prior to that time, the court can decide that the child's preference should not be honored, if so voiced, because it is not in the child's best interests.

What is marital property and what is not?

Marital property is any property acquired during the marriage or with marital assets.

What is separate property?

Primarily property inherited by a party which is not gifted or co-mingled inextricably with marital property, and property acquired before marriage or anything derived from it. 

What about taxes and other things that must be dealt with during separation, will the court intervene?

Often not. Parties are encouraged to agree on such matters. If they cannot, then they will make the best decision they can and, if an inequity has resulted from the acts of one or both parties, the issues will be addressed at the final hearing.

What if we have forgotten to consider something, or something unexpected comes up after we have reached an agreement or after the court has ruled?

If it is after an agreement is entered, please see Contract Disputes in the Post Divorce section. If it is after a court has ruled based on the evidence presented at trial, you may have an avenue for the court to make a subsequent ruling, however, it will be largely based on the specific circumstances at hand.

Are grey divorces common?

Fully one out of every four people experiencing divorce in the United States is 50 or older, and nearly one in 10 is 65 or older, according to a report by Susan L. Brown and I-Fen Lin, sociologists at Bowling Green State University.

Are prenuptial agreements a good idea if I remarry?

Pre-nups may be a particularly helpful tool for those remarrying after a grey divorce, as people at this stage in their lives may have more assets to protect, may already have retirement plans,  and may have adult children to consider. 

What's the difference between spousal support, alimony and separate maintenance?

There isn't any, they all mean an amount payable from one spouse to the other so that the spouse in need can afford to live.

For how long will I receive spousal support?

That is determined by the length of the marriage, your ability to financially meet your own needs and the ability of the opposing party to pay along with a host of other factors. If the court decides you should only need support for a limited amount of time, that is called Rehabilitative Spousal Support. If you are awarded support until death, remarriage or cohabitation, that is considered permanent support.

Do I have to have a prenuptial agreement to protect my interests?

No. The law will generally allocate to you any property you owned before marriage if you do not mingle it to the point of non-recognition with marital property and the courts will divide marital property between the parties absent an agreement in the event of a divorce. A prenuptial agreement, however, removes the uncertainty of a judicial determination.

What happens to the agreement if we don't marry?

They are valid upon marriage, so the contract is never validated if there is no marriage.

How do I recover assets that were hidden?

If need be, you file a suit and ask the court to recognize the actions of the other party, and do equity by providing you with a monetary award and fees for having to come to court as a result of the party's failure to disclose.

What if the other person just refuses to do what the contract or decree requires?

Once the contract is incorporated into a court order, or a court ruling is made in to an order or decree, you can file a Rule to Show Cause and ask the court to enforce the order, as well as order the other person to pay your fees and costs as their actions necessitated the court's involvement.

Can the court consider additional cost factors in setting child support?

Yes, they are called deviation factors. They can include the costs of private school, tutors, and the like.

What does the visitation/timesharing schedule have to do with child support?

If the child or children are with one parent for 90 or more days, a different mathematical calculation is used. If there are two or more children and the children reside primarily in different households, a calculation to address that visitation/timesharing arrangement is used.

Why is child support determined after spousal support?

Because any amount of spousal support payable from one parent to the other is added to the receiver's income and deducted from the payor's income to determine the parties' incomes for the child support calculation.

If a mortgage contribution is being paid, is that factored into income like spousal support?

No, because it is to paid to maintain the asset, not to provide support for a party.

What if the other parent makes less than they should or could?

If they used to earn more and now earn less due to decisions or actions they have taken, or they choose to be under employed, the court can treat them as having higher earnings.

What if there are other children to support?

If the person writing the check is supporting another child, a different calculation is used to keep some of that parent's income in their household for the benefit of the other child. 

What if, after the contract is signed, there is something I want to change about it?

If it is an executed contract, and the contract is not ambiguous, it is not likely that you will be able to change it without agreement of the other party.

What if we do not agree about what a term in the contract means?

The plain meaning rule applies, but if that does not resolve the dispute among the parties, the court can step in and consider who drafted the contract and how the parties will be impacted by a reading of the contract in one way or another.

What constitutes a change in circumstances?

Changes involving the children themselves, such as their maturity, their special educational needs, and any of a myriad of changes that might exist as to them, positive changes in the circumstances of the non-custodial parent, such as remarriage and the creation of a stable home environment, increased ability to provide emotional and financial support for the children, and other such changes and/or negative changes in the primary physical custodian's home may all qualify as changes in circumstances that would cause the court to reconsider the existing timesharing arrangement.

What if the initial determination was just wrong?

Then you may want to file a motion for reconsideration or appeal the decision to a higher court, but you likely are not in a position to seek a modification based on a change in circumstance unless changes have also taken place since the initial determination.

What does the adoption mean for the biological parent(s)?

The adoption eliminates the biological parent's obligation to provide support for the child, but it does not eliminate any existing child support arrearage.

The adoption does NOT eliminate the child's right to inherit from the biological parent.

What is Virginia Code § 63.2-1215?

Except in limited circumstances, the blood relatives and family members of the parent being divested of their parental rights, are also divested of their legal rights and obligations to the child, including right to petition the Court for visitation. 

What if you have met with the other party?

Then it is highly unlikely we can meet with you.

What are the client's responsibilities to the attorney?

Primarily they are to cooperate. If information or documents are needed from the client, the client must provide them. You may choose not to follow the advice of counsel, but as long as we are your counsel, we can not support actions or behaviors that impair the case. Deadlines with the court or those dictated by the Rules of the Supreme Court of Virginia, for example, must be met.

What are the attorney's responsibilities to the client?

Primarily to speak for you and look out for your best interests and the best interests of the case. This means that we will communicate with the opposing counsel, any third parties such as guardians ad litem, experts and the court on your behalf. Another key responsibility is to educate the client as noted above.

Do we have children whose custody is at issue?
  • If so, how are they handling the separation of their parents?
  • Do any of the children have special emotional, mental, physical or educational needs? Are those needs being met?
  • Should any mental health professionals be involved in the case to aid the parents, the children, or the family as a whole?
Do we have unique tax concerns?

Ms. Reese was an accountant before becoming a lawyer, and though it often comes in handy, the use of a good expert is often needed to address complex financial issues, or to get those many years of back taxes done.

Do we have property at issue?
  • Business interests? Are the interests of the spouses the same? Who will operate the business during the separation and after divorce? How, if at all, will the parties be compensated for their interests?
  • Real property? Is it jointly titled? What is it worth? Who has contributed to the value and how? Who wants it, and who can afford to keep it?
  • Personal property? Who's property is it, and why? What value, if any, does the property have on the open market, and what value does it have to each party? (Have you ever heard "one man's trash is another man's treasure"? Well, here you have it.)
  • Retirement accounts? Isn't it mine because it is in my name? How much do I get and when? What are the tax implications and who pays them?
What Our Clients Say
    I TRUST Kate.   

Divorce is difficult. Kate made the process as easy as one could. Kate was honest and straightforward while working with a difficult client (me!). I have recommended her to several friends and colleagues and will continue to do so. In a word.... I TRUST Kate.

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