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There are many popular myths that family law attorneys often hear. Below are some of the most common family law myths:
1) Child custody almost always is awarded to the mother.
Per Virginia Code 20-124.2 there is no presumption in favor of either parent. Regardless of the child’s age, the court must weigh a set of factors as to what is in the best interest of the child(ren). In fact, in recent years the Virginia state legislature has entertained bills that would make a shared custodial arrangement the favored presumption. Thus far, the bill has not been made law but it shows a trend that is occurring across the country that so long as parents are able to co-parent then both parents should have extended custodial time with the child(ren). Be sure to communicate any and all issues related to custody with your family law attorney so they can best advise as to likely outcomes and better help guide you through this difficult process.
2) A child can decide which parent to live with.
Per Virginia Code 20-124.3, the Court will consider the reasonable preference of the child(ren), if the court deems the child(ren) to be of reasonable intelligence, understanding, age, and experience to express such a preference. First, the Court must hear evidence of the child’s preference and in most cases, the court does not hear that evidence because a parent saying, “The child told me that (s)he wants to live with me” is not admissible.
Second, most judges do not want to see or hear from a child(ren). Court is an intimidating place for adults and even more so for children, even when the child(ren) say they want to speak with the judge. Often times a parent’s desire to have the child(ren) speak in court backfires as the judge concludes the parent is not able to assess what is in the best interests of the child(ren) and is unable to shield them from difficult situations. If you believe the child(ren)’s preferences are important then speak candidly to your counsel but do not be surprised if they encourage you to find other avenues to address the concerns and issues.
3) If I am not seeing my child(ren) as much as I want or at all then I will just sign over my parental rights.
Virginia does not allow a parent so relinquish parental rights unless there is another person (i.e. stepparent) to step into that financial role. If one parent were able to relinquish his or her parental rights and then something happened to the other parent, then there is a chance the child(ren) could become a ward of the Commonwealth and that taxpayers would be financially responsible for the care of the child(ren). Virginia’s public policy is that Virginia has a vested interest in ensuring that both parents are financially responsible for the care of the child(ren).
4) The other parent is not paying child support so I do not have to let him/her see the child(ren).
A parent cannot deny visitation/custodial time to the noncustodial parent when he or she does not pay support. Whether a parent pays support is not a factor that the Court can consider in awarding custody or visitation. However, there are legal remedies available to parents who are not receiving support. Those remedies can range from a demand letter to the nonpaying parent up to and including jail, so it is important to speak to a family law attorney to assess the best way to get you the required child support so that you can properly care for the child(ren).
5) My spouse is at fault for the divorce so (s)he will have to pay my fees.
This is one of the most common misconceptions in divorce and family law matters. The American Rule for attorney’s fees provides that each party is responsible for paying its own attorney’s fees and costs unless specific authority allows those fees to be paid by the other party. Courts will consider a number of factors when assessing whether to require one party to pay all or a portion of the other party’s fees. Some of those factors include (1) the financial means of the parties (2) did one party fail to abide by an order, (3) did one party unreasonably delay and fail to act reasonably, (4) did one party refuse to negotiate or negotiate in bad faith, and (5) is one party attempting to enforce a prior order. Even if a party has done one of the aforementioned, it does not mean that the other party will receive all or even a substantial portion of their fees. All parties entering litigation should plan on having to be solely responsible for the fees and costs, which is why many family law attorneys strongly encourage vigorous negotiating and settling matters outside of court whenever reasonable and possible.
6) Prenuptial agreements can address custody issues and waive future child support.
While parties may include provisions related to custody and future child support awards in a prenuptial agreement those provisions are unenforceable and void as a matter of public policy. When courts address issues of custody, they must look at the current circumstances that exist for the parties and the child(ren). Therefore, an agreement executed many years ago laying out a custody arrangement will not be enforceable if one party objects. Additionally, a parent may not permanently waive child support because child support is for the benefit of the minor child(ren). While the payment is made to one parent, that parent is a trustee of the funds that are used for the care of the minor child(ren).
7) The debt is in my spouse’s name so I do not have to pay for it.
Pursuant to Virginia Code 20-107.3, marital debt is all debt incurred in the joint names of the parties before the date of the last separation of the parties and all debt incurred in either party’s name after the date of marriage and before the date of the last separations. This generally means that regardless of whose name the debt is under, if the debt was used for marital purposes then it is marital debt. If a debt is found to be marital debt then the Court must divide the debt during the divorce litigation.
8) The retirement asset and/or pension is in my name so I do not have to share it with my spouse.
Like the debt issue above, Virginia Code 20-107.3 defines marital assets as all property titled in the names of both parties and all property acquired from date of marriage to date of separation. Even if a spouse had a retirement asset prior to marriage, if the spouse contributed to that retirement asset during the marriage then the portion that was contributed to during the marriage plus the gains or losses is marital property and can be divided by the court. However, if a spouse did not contribute to the retirement asset during the marriage but there were passive gains during the marriage, the entirety of the asset remains premarital property.
As for any pension, pursuant to Virginia Code 20-107.3, the Court may award a spouse 50% of the marital share of any pension, whether vested or unvested, that accrued or the right to which was earned during the marriage.
9) If I litigate everything and prove my spouse is at fault then I will get everything I want.
This is, again, a very common thought of people who begin the divorce process. Virginia Code 20-107.3 permits the Court to consider the grounds for divorce when dividing and awarding marital debts and assets. However, in most cases, the financial and emotional costs outweigh pursuing lengthy litigation.
Most judges in Northern Virginia are of the mindset that even when fault is proven that marital assets should be divided close to 50/50. When the question was posed to a recent panel of local judges, “What if a spouse is caught dead to rights cheating on the other spouse, does the nonoffending spouse get more than 50% of the assets,” all the judges sitting on the panel said “no.” One judge aptly said, “Because the adultery was not the reason for the divorce, it was a symptom of the divorce.” This can be incredibly difficult for clients to hear at the onset of the separation and divorce process. It does not mean, however, that your family law attorney will not use the evidence to aggressively negotiate a favorable settlement. Often times the threat of embarrassing litigation is reason enough for parties to negotiate a favorable settlement. Using any evidence of fault, particularly that of adultery, to negotiate a favorable settlement is preferable and avoids large sums of litigation costs.
10) It’s a bad thing if my lawyer knows or is acquainted with my spouse’s attorney.
Many people want their lawyer to be as aggressive with “the other side” as possible. Often times this demand for aggression is because the parties are going through intense emotions ranging from anger and sadness to resentment. There are many cases that require an aggressive approach and the attorneys at The Geller Law Group are equipped to handle those matters. However, often times when counsel are familiar with one another they can effectively mitigate a large number of issues that “pop up” throughout the litigation. This is not only helpful for co-parenting in custody cases but also helps defray litigation costs in general.
The sign of a good family law attorney is someone who is able to keep their emotions separate from the facts of the case. It’s completely reasonable that the parties are going to be emotional through the process but attorneys best serve their clients when they are able to focus on the issues and unemotionally advocate for their clients. The divorce and custody processes work best when the attorneys are able to set their clients’ emotions aside and work together to resolve some or all of the issues.
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