COMMON MISCONCEPTIONS ABOUT DIVORCE & FAMILY LAW
Jan. 20, 2021
Many people believe family law only encompasses issues linked to divorce, such as child custody and alimony. In reality, family law includes many more legal processes than just divorce. It includes any area of the law involving family relationships, such as paternity, emancipation, adoption, foster care, and eldercare. A family law attorney might also handle estate planning because it can play a role in prenuptial and postnuptial agreements, as well as in inheritance.
Because family law involves personal relationships, matters can become contentious and stoke fears that are often unexpected. Before you allow them to become a tremendous source of stress in your life, get the facts. Family law is essentially structured to protect people, not punish them.
For nearly 20 years, E. Gordon Peters, Jr., Attorney at Law, has provided experienced and knowledgeable representation for clients in Lynchburg, Blackstone, and surrounding Virginia communities in a broad range of family law matters.
Five Common FamilyLaw Misconceptions
When divorce or family law issues arise, there are several misconceptions people may have. These misconceptions include the following:
If the Other Parent Does Not PayChild Support, I Can Withhold Visitation
Child support and visitation are two separate issues. Both parents are legally obligated to provide financial support for their children, but the noncustodial parent is not “paying” to see their children. Visitation is the child’s right to have a relationship with both parents. If you attempt to violate the court-approved visitation agreement by not allowing the other parent to spend time with the children, and you return to family court, the judge will not appreciate your attempt to punish the noncustodial parent at your children’s expense.
The Mother is Always AwardedPrimary Custody of the Children
The yardstick for the court is always what is in the best interest of the children. For a very long time, because moms tended to stay at home and dads went to work outside the home, the mother was typically awarded primary physical custody of the children. Now that both parents are employed in many marriages now, that is no longer true. Virginia law expressly states: “As between the parents, there shall be no presumption or inference of law in favor of either.” Instead, the relationship between each parent and the children and the nature of their bond determines primary physical custody. In the majority of cases, the mother continues to spend more time caring for children and as a result, is more often awarded primary custody.
The Children Get to Choose Who They Live With
The court, not the children, decides which parent receives primary custody. The court will consider the wishes of children who are old enough and have the intelligence and maturity to express an opinion; however, the court weighs numerous other factors when awarding primary custody. Children ages 14 and older are usually old enough to voice their opinion; therefore, a judge will factor it into deliberations.
If Adultery was Involved,the Other Spouse Gets Everything
Virginia law accommodates both no-fault and fault divorces. Adultery can be grounds for a fault divorce; however, it is extremely difficult to prove without substantial evidence. To prove adultery, you would likely need to hire a private investigator to document it. Because the non-adulterous spouse is not entitled to receive all marital property in a divorce, the investment in proving adultery may not be worth it.
Virginia views marriage as an economic partnership and the law requires equitable distribution of marital property in a divorce. One of the factors the court considers in dividing assets and liabilities is what led to the dissolution of the marriage, which could be adultery. The court also considers the use of any marital property for nonmarital separate purposes. While these are factors in deciding what is equitable, they do not mean the other spouse will be awarded all marital property in the divorce.
If Property Is in the Name ofOnly One Spouse, They Get to Keep It
Under Virginia law, assets and debts are categorized as marital, separate, or a combination of the two. Marital property is anything acquired during the marriage, including retirement and investments — even with only one spouse’s name on them. Separate property includes assets and liabilities acquired prior to the marriage, and inheritances or gifts given to one spouse during the marriage, except for any gifts one spouse gave another. Those are marital property.
Some property can be both. For example, if one spouse owned the house before the marriage but the other spouse has contributed to mortgage payments or renovations to the home, it is marital property. If one spouse had a business prior to the marriage but the other spouse has worked in the business and increased its value, the initial investment would remain separate property, but the value added to it would be marital property.
How an Attorney Can Help
Most divorces are complicated. The presence of more assets, liabilities, and the need for child custody agreements make them even more complex. No matter what type of family law issue you may be facing, the place to start is always knowing the facts. An experienced family law attorney can help.
E. Gordon Peters, Jr., Attorney at Law, has helped hundreds of clients get the facts about family law in Lynchburg and Blackstone, Virginia, and the surrounding communities in Campbell, Amherst, and Bedford counties. Gordon believes in delivering those facts with compassion for his clients facing life-changing events.
If you have questions about a family law situation, Gordon has answers. Call the office now to schedule a consultation.