Family Law

Frequently Asked Questions

 

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What are premarital and postmarital agreements?

A premarital or prenuptial agreement is a written contract entered into prior to marriage to settle the couple’s affairs and assets in the event of a separation or divorce. A premarital agreement typically lists all of the property each person owns as well as debts and specifies what each person’s property rights will be after the marriage. This contract can help protect separate property, protect spouses from each other’s debts, reduce conflicts, and save on the cost of litigation if couples decide to divorce. A postmarital or postnuptial agreement is similar to a premarital agreement, except that it is entered into after a couple is married.

With joint legal custody, both parents continue to share in the decision making on an equal basis regarding the children’s education, health care, religious training, and general welfare. The minor, day-to-day decisions in joint legal custody are made by the parent who is physically caring for the child at the time.

Joint custody has nothing to do with the amount of time spent with the children and does not necessarily mean that all parties will share physical custody. At its best, joint legal custody allows for the maximum involvement of both parents in the lives of their children and is only successful when both parents are willing to work together for the best interests of their children.

With sole legal custody, the sole custodial parent has the right to make all important decisions on behalf of the children. Sole legal custody can be the best option for the children in cases were both parents continue to have ongoing disagreements with the decision making responsibilities, which eliminates the child from being pawns in their parent’s never-ending battles. Remember, the court’s primary interest is in protecting the best interest of the children.

What is physical custody?

Physical custody refers to the parent with whom the child resides. This parent is referred to as the custodial parent while the other parent is usually given visitation rights. Child support is typically paid to the custodial parent; however, the custodial status does not grant additional rights to that parent.

In some cases joint physical custody may be awarded, in which case the child resides with both parents for a significant amount of time. Joint physical custody works best if parents live in close proximity to one another so as not to affect the child’s schooling and ability to maintain a somewhat normal routine.

For joint physical custody to be effective, there must be cooperation on both sides and each parent should respect the relationship of the child and the other parent.

What factors do courts evaluate to determine the custody of children?

A judge will consider many factors when deciding which custodial arrangement serves the best interest of the children including but not limited to:

  • The extent and quality of the time spent with the child prior to or subsequent to the separation;
  • The parent’s ability to provide the child with food, shelter, clothing, and medical care as well as satisfy the child’s special needs, if any;
  • The mental and physical health of the parents;
  • The quality of the child’s education in the current situation;
  • Whether there has been domestic violence, abuse, or neglect by either parent;
  • Work schedules and child care plans of each parent;
  • The quality of the child’s relationships with their siblings and other members of the family;
  • The wishes of the child as to his custodian if the child is of sufficient age and capacity
    the living accommodations of each parent’s home and their ability to provide a stable, loving environment;
  • The willingness of each parent to support and facilitate the children’s ongoing relationship with the other parent, when it is safe to do so.

What is mediation?

Mediation is a voluntary, informal process in which parties are assembled to discuss their case with an impartial third party known as the mediator. The mediator helps facilitate discussions and allows disputing parties to reach a mutually acceptable agreement regarding their dispute without having to go to trial.

What is arbitration?

Disputes are brought before a neutral third party, the arbitrator, who, after carefully reviewing all of the relevant information, makes a binding decision on the dispute. Arbitration offers parties a decisive legal outcome to their disputes without the expense and inconvenience of court proceedings. Arbitration can only take place if both parties have agreed to the procedure.

Do I need an attorney if my spouse and I agree on how to divide our property and the custody of our children?

Even if you and your spouse agree on how to divide your property and custody of your children, you may still need an attorney that can draft your settlement agreement and make sure everything is covered legally to avoid future problems.

What is the difference between an annulment and a divorce?

An annulment is the legal declaration that marriage never existed while a divorce is the dissolution of a legally valid marriage. Some parties seek annulments due to religious beliefs, which prohibit divorce or remarriage.

Helpful Links

Virginia Department of Social Services

Division of Child Support Enforcement

Fauquier County Department of Social Services