Family law, one of the specialities at K.M. Khan Law, is an area of practice covering the many legal issues faced by married couples and families.
Pre-Nuptial and Marital Agreements
A wedding is a momentous occasion. You are entering into a partnership with another person, both emotionally and financially, and agreeing to spend the rest of your life together. Many people consider pre-nuptial and marital agreements to be unromantic documents, predicting in advance that the relationship will fail. This is not at all the case. In reality, these documents can provide couples with a clear understanding of the commitment they are making to each other while also preventing future problems and misunderstandings.
Pre-Nuptial Agreements
A pre-nuptial or premarital agreement is a contract between prospective spouses, entering into effect upon their marriage. The content of these agreements may vary, but they typically deal with property ownership, the management of matrimonial assets, spousal support, potential alimony payments, estate planning, and other personal rights and obligations. A pre-marital agreement is a valuable tool for all couples, but it is especially important for spouses who are bringing children into the marriage.
The most important issue when creating a pre-nuptial agreement is to ensure that both parties’ finances are completely disclosed. All assets and liabilities should be detailed in writing and provided to the other prospective spouse, as well as being attached to the agreement itself. If the agreement is later legally questioned, the court’s first action will be to determine whether both parties voluntarily entered the contract with full knowledge of its implications on their property interests. Pre-nuptial agreements must be set forth in writing in order to be enforced by the court.
These agreements must be in writing to be enforceable. It is also highly encouraged for both spouses to seek separate legal counsel so that each will receive independent advice regarding the pre-nuptial agreement.
Marital Agreements
A marital agreement is similar to a pre-nuptial agreement, except that it is prepared by spouses who are already married. An agreement of this kind is generally used by spouses who are considering separation or divorce. The agreement specifies each partner’s rights and obligations for the remainder of the marriage or during the period of separation. If the spouses decide to reunite after separating, the agreement will end, unless both parties decide otherwise.
There are other reasons to consider a marital agreement besides an impending divorce. For example, this kind of agreement can be useful for couples who would like to specify procedures for handling their estate after the passing of either one of them.
If you are engaged to be married, considering separation, or would just simply like to learn more about pre-nuptial or marital agreements, contact K.M. Khan Law today to discuss your situation on a no-cost and confidential basis.
Uncontested Divorce
In Virginia, divorcing spouses who are in agreement about the division of their marital property and the payment of spousal support are eligible for an uncontested divorce.
In addition, for an uncontested divorce, the spouses must have been “living separate and apart” for the required period of time, either six or twelve months. For this provision to be satisfied, the parties must have lived apart without interruption; that is, they must not have cohabitated during any part of this time nor presented themselves as a married couple. If the marriage has produced no minor children, whether born or adopted, and the spouses have signed a separation agreement, a period of only six months of complete separation is required.
See the “Frequently Asked Questions” section below to learn more and to determine whether you are eligible for an uncontested divorce.
K.M. Khan Law can carry out uncontested divorces on a flat fee basis, and if both parties agree promptly to the conditions, the procedure can be concluded within a short period of time.
Uncontested Divorce FAQ
1. Do I qualify for an uncontested divorce?
You and your spouse can qualify for an uncontested divorce in Virginia if the following requirements are met:
1. One or both of you have been Virginia residents for at least the last 6 months;
2. You and your spouse both agree to the divorce and its essential terms such as the division of property and support; and
3. You have lived separate and apart for at least twelve months, or six months if you have no minor children born or adopted within the marriage.
2. Can I get divorced after living separate and apart for only six months?
To be divorced after having lived separate and apart for only six months, you must meet two requirements. First, there must be no minor children born or adopted within the marriage. Second, the parties must have a formal written and signed separation agreement. K.M. Khan Law can help prepare a separation agreement for you.
If both of these requirements are not met, a period of twelve months or more of separation is required.
3. Do I need a Property Settlement Agreement if my spouse and I have no property?
If you are filing for a divorce after six months of separation, Virginia law requires a Property Settlement Agreement (“PSA”) to be filed. However, if you are filing after twelve months or more of separation, no PSA is required.
If you have no significant property and no minor children from the marriage, this agreement can be as simple as a statement that each spouse will retain ownership of any assets that he or she brought into the marriage.
4. Can I request spousal support payments or child custody in an uncontested divorce?
If you and your spouse have reached an agreement about the terms of spousal support, you may incorporate your proposed payment schedule into the final divorce decree.
Child custody and child support will likely have to be handled by the Juvenile and Domestic Relations Court, whose order can then be included in your uncontested divorce decree. K.M. Khan Law can help you with both of these procedures.
5. When will the divorce be filed?
If either you or your spouse has been a resident of Virginia for at least the last six months, the divorce can be filed as soon as the period of living separate and apart has been satisfied. This period is either twelve months, or six months in the case that no minor children are involved.
6. How long will my divorce take?
An uncontested divorce can take as little as two to three weeks, if both spouses accept and sign the paperwork promptly.
7. I live outside Northern Virginia; can you still help me?
If both parties are in agreement, and you meet all the other requirements for an uncontested Virginia divorce (see Question 1), we can file your divorce in any jurisdiction in Virginia.
8. What if I don’t know where my spouse lives?
If you have lost touch with your spouse and do not have a current address, he or she can be located if you have some identifying information, such as a Social Security number. If your spouse still cannot be found, we can help you obtain a divorce by filing an order of publication and having a notice published in the newspaper.
9. How do I change my name back to my maiden name?
An Order for Name Change can be submitted along with your Final Divorce Decree.
If you believe you are eligible for an uncontested divorce, contact K.M. Khan Law today for a free and confidential consultation.
Contested Divorce
A contested divorce is one in which the two spouses cannot come to an agreement about certain issues. The disagreement might be over child support, child custody, visitation, property division, spousal support, or any combination of these matters. If the spouses cannot agree, even with the help of their attorneys, the divorce must go to court. The court will allow both sides to present evidence and make arguments, and then it will decide the issue for them. This decision is binding on both parties, although it can be appealed.
For the divorce to be finalized, the spouses must live separate and apart for twelve months. A spouse may petition the court for temporary support and child custody during this period of separation.
Marital Property
In a divorce, the spouses’ marital property is divided according to the principle of equitable distribution. "Marital property" consists of all jointly-owned property, as well as property acquired by either or both of the spouses from the date of marriage up to the time of the final separation, with the exception of separate property. "Separate property" is property owned by one spouse prior to the marriage, property acquired after the spouses have separated, or property received by one spouse through an inheritance or as a gift from a third party. Issues arise when one spouse’s separate property is mixed or commingled with the shared marital property, or when the value of separate property (such as a house or business) is increased through the active efforts of either spouse during the marriage. If this occurs, the separate property may be reclassified as shared marital property or as "part marital and part separate" property.
Under the principle of equitable distribution, an attempt is made to divide the marital estate as fairly as possible between the two spouses. However, the court is not necessarily required to divide the marital property on a completely equal basis. When dividing marital assets, the court will consider various factors, including the respective financial and non-financial contributions of each spouse to the marriage and family, and the ways in which the marital property was acquired and cared for during the marriage.
The court may simply divide the property, order the property to be sold, transfer jointly-titled marital property to one of the parties, order a monetary payment to one of the spouses, or use a combination of these approaches. Pensions and retirement plans accumulated during the course of the marriage are also subject to division as part of the court’s equitable distribution award. However, neither spouse can receive more than one-half of the other spouse's pension or retirement plan accumulated during the marriage.
Spousal Support and Alimony
Spousal support is the payment of money by one spouse to the other during and/or after the divorce process. Its aim is to maintain the standard of living to which both spouses were accustomed during the marriage. Spousal support is not awarded to punish a “guilty” spouse; rather, it is provided to lessen the impact of the divorce on the party who is less financially independent.
The amount awarded for support depends upon factors such as the duration and history of the marriage, the ages of the parties, their earning potential, and the marital assets distributed to each party. The court may award spousal support in installment payments over a set period of time, or in a single lump sum.
Spousal support set by the court can be modified in the future if it can be shown that a material change has occurred in the circumstances of either party. Similarly, if spousal support is not awarded when the divorce is granted, the parties may reserve the right to seek spousal support in the future. This reservation will generally be valid for a period no longer than half the duration of the marriage.
Child Custody
Child custody, support and visitation are the crucial issues in most divorces. In determining custody arrangements for a minor child, the court is guided by the fundamental principle of “the best interest of the child.” This means that the child’s health, education, care, support, and welfare will take precedence over any wishes and desires on the part of the parents. Custody will not be given to a parent as a reward, nor will it be denied as a punishment for one parent’s behavior during the marriage. Rather, custody will be awarded to the parent who is judged to be best suited to the task of caring for the child, and who is capable of controlling and directing the child. Custody arrangements may be altered in the future if a material change in circumstances occurs after they have been set.
The term “custody” actually includes two different concepts: legal and physical custody. “Legal custody” involves the right and duty to make decisions about a child’s upbringing. The court may award "joint legal custody," in which both parents have a role in making decisions for the child, or "sole legal custody," where one parent is ultimately responsible.
“Physical custody” refers to the child’s actual living arrangements. In the case of “joint physical custody,” the child spends significant amounts of time with both parents. This type of custody is often awarded when the parents live relatively close to each other, since it lessens the stress of the divorce on the child and allows him or her to maintain a somewhat normal routine. In cases where the child lives primarily with one parent, that parent is known as the “custodial parent,” with sole or primary physical custody. The other parent may be entitled to “visitation,” time spent with the child during the day or overnight according to a schedule set by the court.
Factors considered by the court when awarding custody may include the ages of the parents and the child, the physical and emotional state of the parents and the child, the existing relationships between the child and each parent, the child’s specific needs, the role played by each parent in raising and caring for the child, the home environment where the child will live, and the child's wishes, if he or she is of sufficient age and maturity to make such a decision. Another important factor is each parent’s willingness to ensure that the non-custodial parent will remain a significant part of the child’s life. Often, the court will set up living arrangements so that the child will reside primarily with one parent during the school year, while the other parent is eligible for visitation with the child during that time, for example on weekends.
Child Support
Normally, the party receiving visitation will be asked to contribute to the support of the minor child who is staying with the custodial parent. Here, the court is guided by the needs of the child and the non-custodial parent’s ability to pay.
Official “Child Support Guidelines” can be used to calculate an appropriate amount of child support. However, the court may deviate from these guidelines in appropriate circumstances. The court may also require a parent to maintain a life insurance policy in order to provide continued financial security for a child in the event of his or her demise. In addition, the court may divide the tax exemptions for the child between the spouses.
The amount of child support may be increased or decreased if a material change occurs in the circumstances of a parent or of the child.
If you have any questions about obtaining a divorce, or about child custody or support, do not hesitate to contact K.M. Khan Law for a free and confidential consultation.
Fault-Based Divorce
There are only three grounds for fault-based divorce in Virginia: adultery, conviction of a felony during the period of the marriage, and cruelty or desertion. If any of these requirements are met, the divorce can be finalized without a mandatory waiting period or time of separation.
Adultery
Adultery is defined as voluntary sexual intercourse by a married person with someone who is not his or her spouse. The act of adultery must be proven with clear and convincing evidence. This is a very fact-specific finding, and the evidence must satisfactorily and conclusively prove that the other spouse did in fact engage in sexual relations outside the marriage.
Conviction for a Felony
If a husband or wife has been convicted of a felony and confined in jail or prison for more than one year, then the other spouse has sufficient fault-based grounds for an immediate divorce. However to be eligible for this kind of divorce, the other spouse may not have cohabited with the convicted spouse after learning of the sentence and confinement.
Cruelty and Desertion
If either party is found guilty of cruelty, willful desertion or abandonment, a divorce may be decreed after a period of one year from the date of the act.
Cruelty is any conduct that makes living together unsafe or that involves danger to a spouse’s life or health. Generally, emotional cruelty alone is not normally a ground for divorce in Virginia. However, abusive language and humiliating insults can constitute cruelty if the conduct affects and endangers the mental or physical health of the divorce-seeking spouse.
If you believe you are entitled to a fault-based divorce, contact K.M. Khan Law right away for a confidential and cost-free consultation.
Annulment of a Marriage
While a divorce is the dissolution of a legally valid marriage, the granting of an annulment means that the marriage is considered never to have existed in the first place. In Virginia, there are only a few very specific and narrow grounds for obtaining an annulment.
The following types of marriages are considered invalid in Virginia, with the parties having no claim to marital property division or spousal support:
1. A marriage between two individuals of the same sex;
2. A bigamous marriage, in which a married person has entered into a second marriage with another spouse;
3. A marriage between close relatives, whether by blood or by adoption, including marriages between an uncle and niece or an aunt and nephew; and
4. A marriage involving a minor under the age of eighteen without the consent of his or her parents or guardian.
Other types of marriages are not considered automatically invalid, but they may be voidable by the innocent spouse within two years of the date of the marriage. Claims for support and property division may still be enforced when an annulment is granted for these marriages. They include cases in which:
1. One party had an incurable mental or physical incapacity at the time of marriage, preventing him or her from being able to consent voluntarily to the marriage;
2. A party to the marriage is a convicted felon, and the other person did not know of this conviction at the time of the marriage;
3. One of the spouses had worked as a prostitute before the marriage, without the knowledge of the other;
4. The wife is pregnant with the child of someone other than the husband at the time of marriage, without his knowledge, or the husband has fathered a child outside the relationship, born within ten months after the date of the marriage, without the wife’s knowledge; or
5. Fraud or duress is committed by one of the spouses in consummating the marriage.
If you believe you are entitled to an annulment of your marriage, do not hesitate to contact K.M. Khan Law for a confidential and cost-free consultation.
Modification of Spousal Support or Child Custody
After a divorce has been finalized, either party may petition to modify or change the current spousal support or child custody arrangement.
Changing Spousal Support
Under Virginia law, spousal support terminates automatically if the person receiving support moves in with another person in a relationship analogous to marriage, unless the former spouse has agreed otherwise. The recipient does not need to be legally remarried for the support payments to end; rather, he or she need only be in a close intimate relationship and be cohabitating or spending a significant number of nights with another person. This relationship must be demonstrated with clear and convincing evidence.
Spousal support may also be increased, decreased, or terminated if either party has experienced a material change in circumstances which was not reasonably foreseen when the original award was set. The support order may also be changed if a condition that was expected to occur after the initial support hearing has not been fulfilled. A support agreement negotiated by the parties on their own may also be used by the court to modify the current arrangement.
Some examples of a material change in circumstances include involuntary job loss by either party; the incapacity, serious injury, or disability of the person paying support; or a significant increase or decrease in the earnings or income of either party.
Changing Child Custody
In order to modify an existing child custody, visitation, or support order, a material change of circumstances must have occurred since the order was initially put in place. The new custody or support arrangement must also be in the best interest of the child. The burden of proof is on the party requesting the change, who must show the court that these two requirements have been met. The court may be reluctant to modify an existing order, since a stable situation for the child after the divorce of his or her parents is preferred under the law. If a custody arrangement is altered, the child support obligation of the parent responsible for payment will also be modified.
Virginia law clearly states that the intentional withholding of visitation from the other parent, without just cause, may represent a material change of circumstances. Other factors that may justify a modification include the remarriage or death of one of the parties, or criminal activity by one of the parents.
If you would like to change your current child custody or support arrangement, K.M. Khan Law is here to help you. Contact the firm today for a no-cost, confidential consultation.
Enforcement of a Divorce Order
Once the court has issued a final divorce decree, both parties are obligated to follow it exactly as written. If a former spouse believes that a provision in the final order is not practical, he or she must petition the court for a modification of the decree. The former spouse may not voluntarily disregard any part of the final decree otherwise he or she will then be considered to be in contempt of court and subject to sanctions.
If a former spouse is not complying with the conditions of the divorce order, the other party must ask the court to issue a “Rule to Show Cause.” This requires the violating spouse to appear in court and justify his or her non-compliance. Common violations include a failure to pay child or spousal support, or non-compliance with the child custody and visitation schedule.
Defenses to a “Rule to Show Cause” include the inability to pay the required support, or a demonstration that the failure to follow the order was not the party’s fault. It is not a sufficient defense simply to show that the party did not willfully intend to violate the order.
If you need to enforce a Final Decree of Divorce or another court order, or if you need to defend against a “Rule to Show Cause” served on you, contact K.M. Khan Law today for a no-cost, confidential consultation.
Protective Orders
Domestic violence can have serious and immediate consequences for an individual or family. If your safety and/or that of your children have been threatened through physical violence, stalking, sexual battery, or severe verbal and emotional abuse, K.M. Khan Law will help you apply to the court for a Protective Order. A Protective Order legally commands a person to stop his or her abusive behavior and to end all further contact and communication. The order may also specify the exclusive use of a personal residence for the victim, as well as grant temporary support payments and custody of minor children. A Protective Order issued by one state is also enforceable in another state.
Generally, a victim will first file a complaint with his or her local police department, resulting in the issuance of an Emergency Protective Order, valid for up to 72 hours. The victim may then file for a Preliminary Protective Order with the local court. This protective order is effective for up to 15 days when a hearing will be held to determine whether a Permanent Protective Order should be issued against the abuser. A Permanent Order can be valid for up to two years.
While the purpose of a protective order is to provide needed protection to individuals, it is sometimes misused to gain leverage in a divorce or child custody dispute. Being the target of a Protective Order can have devastating effects on an accused person, affecting his or her child custody and visitation rights, employment opportunities, security clearances, and concealed weapon permits.
If you need a Protective Order for your own safety or that of your family, or if you have been accused of abusive behavior and need to defend yourself, contact K.M. Khan Law immediately for a no-cost, confidential consultation.