Attorney Blog

Is child custody law in Virginia unfair to fathers?

Mon, 17 Jan 2011 08:00:00 EST

Virginia Code Section 20-124.2(B) provides: "

"In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody."

This means that the Court is not allowed to favor a mother over a father in custody and visitation cases based gender considerations, or vice versa. Yet many fathers believe that "father's rights" in custody and visitation cases in Virginia are not observed, or at least that they are not respected as much as a mother's rights. What do you think, and do you believe that father's right's in custody and visitation cases are respected by the Virginia courts?

Spousal Support is not the same as child support

Wed, 12 May 2010 08:00:00 EST

Ken Hodge has outlined some important distinctions between spousal support and child support in his recent article, "Underatand the Differences Between Spousal Support and Child Support." Please click the link above to review the article and feel free to post your comments.

"separate property" in divorce is sometimes marital

Mon, 10 May 2010 08:00:00 EST

Ken Hodge recently wrote an article outlining how separate property, i.e., property owned by one spouse prior to the marriage, can be treated by the Court as marital property to the extent that it increased in value during the marriage. This is an aspect of Virginia divorce law that many clients find surprising and confounding. It is an extremely complex and sometimes controversial aspect of Virginia divorce law, and your comments on the article are welcome.

Debts in divorce are not treated the same as assets

Thu, 06 May 2010 08:00:00 EST

In the recent case of Gilliam v. McGrady, decided April 15, 2010, the Virginia Supreme Court has held that debts incurred during the marriage are not presumed to be marital, as are assets, just because they were incurred during the marriage. The Court said that the equitable distribution statute, Section 20-107.3, treats assets differently than debts in divorce.   While the statute sets up a presumption that assets acquired during the marriage are "marital" and thus subject to division by the Court, no such presumption exists for debts----the trial court is simply authorized to distribute and allocate the debts of the parties acquired prior to the dissolution of the marriage, and is instructed to consider certain factors in doing so.   A debt is not presumed to be "marital" simply because one of the spouses incurred the debt during the marriage.

The wife in Gilliam argued that tax debts incurred by the husband in the operation of his painting business should not be presumed marital, since they were incurred as a result of husband's refusal to comply with tax law, despite wife's efforts to get him to comply.   The Virginia Supreme Court agreed.

Typically, most divorce attorneys and judges have thought of assets and debts in the same way; i.e., if they were acquired during the marriage, they are "marital".   Gilliam changes that approach, and shifts the burden of proof to the person contending that the debt is marital. It therefore begs the question of whether all contested divorce cases involving debts are now going to require a "trial within a trial" to determine the proper classification of those debts.

benefits of settling child custody cases outside of court

Wed, 05 May 2010 08:00:00 EST

Some people think it strange to hear an attorney talk about the benefits of staying out of court. But in child custody and visitation cases, it is absolutely essential that the client consider the risks and costs associated with litigation, and also the possible benefits of resolving the case by agreement. Please see Ken Hodge's recent article on the benefits of resolving child custody disputes by clicking on the link above.