Common Myths of Family Law in Virginia

Family law encompasses many issues affecting families, including but not limited to divorce, child custody and visitation, child and spousal support, protective orders, pre/post-nuptial agreements and equitable distribution. With so much information on the internet, it may be difficult to get accurate answers about certain issues. Below, we debunk four common myths of family law in Virginia.

Myth #1: once a divorce is filed, the court cannot grant any relief until the end of the case.

This is false: circuit courts can grant temporary relief while a divorce suit is pending. Once a divorce suit is filed in circuit court, either party may file a motion for “pendente lite” (pending final resolution) relief. Pursuant to Virginia Code § 20-103, the court may then enter a pendente lite order:

1. to compel a spouse to pay monies necessary for the maintenance and support of the petitioning spouse, including (a) an order that the other spouse provide health care coverage for the petitioning spouse, unless it is shown that such coverage cannot be obtained, or (b) an order that a party pay secured or unsecured debts incurred jointly or by either party;
2. to enable a spouse to carry on the suit;
3. to prevent either spouse from imposing any restraint on the personal liberty of the other spouse;
4. to provide for the custody and maintenance of the parties’ minor children including an order that either party or both parties provide health care coverage or cash medical support, or both, for the children;
5. to provide support, calculated in accordance with Virginia Code § 20-108.2, for any child of the parties to whom a duty of support is owed and to pay or continue to pay support for any child over the age of 18 who meets the requirements set forth in subsection C of Virginia Code § 20-124.2;
6. for the exclusive use and possession of the family residence during the pendency of the suit;
7. to preserve the estate of either spouse, so that it be forthcoming to meet any decree which may be made in the suit;
8. to compel either spouse to give security to abide such decree; or
9. (a) to compel a party to maintain any existing policy owned by that party insuring the life of either party or to require a party to name as a beneficiary of the policy the other party or an appropriate person for the exclusive use and benefit of the minor children of the parties and (b) to allocate the premium cost of such life insurance between the parties, provided that all premiums are billed to the policyholder.

Myth #2: a spouse who committed adultery cannot receive spousal support.

This is false: spousal support can be awarded to a spouse who committed adultery in certain circumstances. Adultery is a fault-based ground for divorce in Virginia. Virginia law generally bars courts from awarding spousal support to a spouse found to have committed adultery—however, there is an exception to the rule. A court may grant spousal support to the adulterous spouse if the court determines from “clear and convincing evidence” that a denial of support would constitute a “manifest injustice” based upon (1) the respective degrees of fault during the marriage and (2) the relative economic circumstances of the parties. The Virginia Court of Appeals has defined “respective degrees of fault during the marriage” to include “all behavior that affected the marital relationship, including any acts or conditions which contributed to the marriage’s failure, success, or well-being.” See Barnes v. Barnes, 16 Va. App. 98, 102, 428 S.E.2d 294, 298 (1993). With respect to the “relative economic circumstances of the parties,” the court will examine the financial situations of both parties, including their current incomes, bank account balances, and earning capacities.

Given the exception to the rule against spousal support for an adulterous spouse, one should be prepared to litigate the degrees of fault and economic circumstances factors in court—and not merely assume that the spouse who committed adultery will not receive support.

Myth No. 3: child support always ends when a child reaches the age of 18.

This is false: a child support obligation may continue after a child’s 18th birthday in some circumstances. Pursuant to Virginia Code § 16.1-278.15 and Virginia Code § 20-124.2, a court order including child support should provide that the support will continue to be paid for a child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the parent seeking or receiving child support, until the child reaches the age of 19 or graduates from high school, whichever occurs first. The court may also order that support be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 if the child met the requirements of clauses (i), (ii), and (iii); (b) unable to live independently and support himself; and (c) residing in the home of the parent seeking or receiving child support. Upon request of either party, the court may also order that support payments be made to a special needs trust or an ABLE savings trust account.

Myth No. 4: you have no obligation to provide any documents or information to the other side.

This is false: in many family law cases, parties may initiate discovery, which is a pre-trial procedure to obtain information and evidence from the opposing party. Discovery may include:

• Interrogatories – written questions requesting information from a party;
• Request for Admissions – a request asking a party to admit or deny a set of statements or allegations, or to admit or deny the authenticity of certain documents;
• Request for the Production of Documents – a request for various documents, records, correspondence, and/or data; and
• Deposition – a proceeding where a party is made to answer questions under oath.

A party’s access to these discovery tools will vary according to the court in which the case is filed. In a juvenile and domestic relations court, a party must request permission from the court to conduct formal discovery. In a circuit court, however, discovery is allowed by default and neither party has to ask the court’s permission before proceeding.

Responding to discovery requests from the opposing party is an important task and should not be taken lightly or overlooked. A party who fails to respond to discovery requests may be prevented from using valuable evidence at trial. It is worth noting that not all information is discoverable. There are objections that a party may assert in response to an opposing party’s discovery requests. As the discovery process can be overwhelming, it is wise to consult with an attorney to help you respond to discovery, and to propound discovery to the opposing party in your family law matter.

Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Ashburn, Manassas, and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.