Tag Archives: Virginia family law

Legal Separation in Virginia: What Does It Mean?

Legal Separation in Virginia

Legal Separation in Virginia
NOVA Estate Lawyers – Leesburg, VA

The decision to end a marriage is emotionally painful and often very difficult for both spouses. But unlike an unmarried couple, you can’t simply move out and move on: You’ll need to go through the divorce process to officially dissolve your relationship in the eyes of the state.

For many couples, the first step on the road to divorce is separation, especially in no-fault cases. In some states, couples can file paperwork to officially claim the status of “legal separation,” in which they live apart and fulfill certain marital obligations prior to a divorce, as agreed to by a court order.

This is not the case in Virginia. Here, a married couple is considered “legally” separated if one or both members intend to end the marriage, and cease to cohabitate as a married couple.

What does that mean?

The first of the two main criteria for separation is simple: You and/or your spouse must believe the marriage is over and decide that you will seek a divorce. This decision may be made separately or mutually, and your husband or wife does not have to share your intention. However, a divorce court will not recognize the official start of your separation until you clearly communicate your desire to end the marriage to your spouse (more on that below).

The “cohabitation” requirement can be a little trickier if you still live in a shared residence – which many couples do at the time one or both of them decide the marriage is over. The easiest way to stop cohabitating as a married couple is for one spouse to move out, but that’s not always practical or financially possible, particularly if you have children together.

Fortunately, you can still be legally separated from your husband or wife while you’re under the same roof, but you must live and treat each other as platonic roommates. This means, first and foremost, that you cannot share a bed or room, nor can you act like a couple inside or outside the home. For example, you can’t shop, cook, or clean for each other, sleep together, go on one-on-one outings together, etc. Essentially, you must not behave in ways that would indicate you are a married couple.

How long do I have to be separated before I can get divorced?

Before a spouse can even file for a no-fault divorce, the Commonwealth of Virginia requires that they be officially separated for one year, or for six months if they have no minor children and create a separation agreement.

In fault-based cases on the grounds of cruelty, desertion, or abandonment, you can file for a limited divorce from “bed and board” at any point after your separation period begins. However, the court will only transfer a limited divorce to an absolute divorce from the bond of matrimony (i.e., you become legally single) after the couple has been separated for a full year.

Establishing the date of separation becomes important here: If the timeline is contested by either spouse, it may delay your divorce proceedings. A surefire way to prove the timeline of your separation is to both sign an agreement that clearly states the date you separated, and that you have no intention of reconciling. If one spouse moves out of the marital home and communicates the intent to end the marriage, this can also be considered a valid date of separation.

Your separation timeline is also important for dividing up assets during your divorce. Generally, any income earned and items purchased after the official separation date are considered separate, individual property that cannot be awarded to your spouse.

There are two key exceptions to the separation waiting period. If you can prove that your spouse committed adultery (or other sexual acts outside of your marriage), or if your spouse has been convicted of a felony and sentenced to at least one year of jail time, you may immediately file for a divorce from the bond of matrimony.

Keep in mind that, due to the complex nature of many divorce cases, it can take months or upwards of a year to get through the litigation process and receive a final order of divorce, regardless of grounds.

Consulting a family law attorney about your separation

If you and your spouse are considering divorce, you’ll want to speak with an experienced family law attorney to go over your options. A lawyer can also help you draft your separation agreement and reach the fairest, most equitable divorce settlement possible.

The Law Office of Patricia E. Tichenor, P.L.L.C., has been serving Northern Virginia families for more than 15 years, and we can make this complicated, difficult period in your life easier. Contact us today to speak with a counselor about your needs and circumstances.

Child Emancipation in Virginia

Child Emancipation in Virginia<br> NOVA Estate Lawyers - Leesburg, VA

Child Emancipation in Virginia
NOVA Estate Lawyers – Leesburg, VA

Until a person is 18 years of age, the legal age of majority in Virginia, their parents or guardians have the right to both custody and control. They have legal responsibility to provide the child with shelter, food, clothing, medical care, supervision, and education, and are legally responsible if the child breaks the law. Once a child reaches the age of majority, however, the parents’ legal responsibility ends.

There are, however, some circumstances under which a child or even parent/guardian may seek to have a child declared “emancipated” even though the child has not yet turned 18 years of age, so long as the child or the parent/guardian is able to convince the court that emancipation prior to age 18 serves the best interests of the minor child.

How does the Emancipation Process Work in Virginia?
In Virginia, a minor child of 16 years of age can petition the court to become emancipated. The parents or custodians are thereby made respondents and given notice of the petition. In addition, a parent or guardian of a minor child may also ask the court for emancipation.

A petition for emancipation must be initiated by a legal filing with the Juvenile and Domestic Relations District Court for the county of city in which either the minor or his/her parents or guardian resides. It should contain the minor’s gender, and if the petitioner is not the minor, the name of the petitioner and his or her relationships to the minor.

The court will appoint a guardian ad litem to the child, as a matter of law, which is a licensed attorney trained and approved by the court to serve as a legal representative to a minor child. Depending on the circumstances, the court may also appoint an attorney for the parents or guardian.

The court may require that the local Department of Welfare or Social Services, or another agency, investigate any allegations within the petition, and report back to the court. A hearing will then be held with all parties present.

Necessary Findings for Child Emancipation
Emancipation may be declared following the hearing if: (1) the minor has entered into a valid marriage (whether or not it has been dissolved since); (2) the minor is on active duty in the U.S. armed service; or (3) the minor willingly lives separately and apart from his/her parents or guardian, with the consent of the parents or guardian, and is capable of supporting himself/herself and completely managing his/her own financial affairs.

Results of Emancipation
There are a number of significant legal ramifications if emancipation is granted, including:
• The child may thereafter enter into a binding contract
• The child may thereafter establish his/her own residence
• The child may thereafter purchase and/or sell real estate
• The child may enroll in a school or college of his/her choice
• The child may marry without parental, judicial or other consent

The parents of an emancipated minor will no longer be considered the legal guardians of the child, nor have any obligations regarding school attendance or support obligations.

Contact your Family Law Attorney
The issue of child emancipation is complicated, and there are many steps and repercussions that should be discussed with your family law attorney. This post just briefly touches on some of the aspects of the process.

To learn more about child emancipation in Virginia, please contact lawyers Patricia Tichenor or Camellia Safi at the Law Office of Patricia E. Tichenor, P.L.L.C. We can help explain how the process works, and whether it works for you and your family. Call our office today.

Legally Establishing Paternity

Legally Establishing Paternity<br>NOVA Estate Lawyers - Leesburg, VA

Legally Establishing Paternity
NOVA Estate Lawyers – Leesburg, VA

A new baby always creates excitement within a family, with doting parents, grandparents, siblings and extended family members sharing the joy.

In most cases, parentage is well known and accepted. However, in others, the identity of the father might be in question. Under Virginia law, only one man can possess paternity of a child at one time, and as a child’s biological father may not necessarily be the child’s legal father, the question of paternity exists. Here are some methods to establishing paternity.

Father’s Name on Birth Certificate
When a child is born to a married couple, paternity is presumed under Virginia law, and normally a mother’s and father’s name is listed on the birth certificate. For unmarried couples, paternity may not always be clear. In order to place the father’s name on the birth certificate a Paternity Statement should be prepared. In Virginia, paternity can be established in the hospital by signing and notarizing a no-cost form called the Voluntary Acknowledgement of Paternity (AOP) prior to being discharged from the hospital.

Establishing paternity itself can be more of a challenge, and there are several acceptable methods that are simply defined here. For more details, please contact your family law attorney.

Genetic Testing

A scientifically-reliable genetic test, consisting of a blood test or genetic test, can establish or disprove paternity with at least a 98% accuracy rate. In the Commonwealth of Virginia, a Motion for Genetic Testing is generally filed with the Juvenile & Domestic Relations District Court and possibly the Circuit Court.

Written Statement
The mother and father can create a written statement, taken under oath, that acknowledges paternity. This process also confirms that both parties were provided with oral and written descriptions of the right and responsibilities of acknowledging paternity, and any consequences of signing the acknowledgement, and includes the potential right to rescind within 60 days.

Although paternity must be proven, other evidence that may be considered for establishing paternity includes:
Cohabitation: evidence of living together or sexual relations between the known parent and the alleged parent at the time conception should have occurred.
Conduct: common use of the father’s name, references acknowledging the father, or conduct conducive to assuming fatherhood.
Claims: claiming the child on legal documents such as tax returns or documents filed with the local, state or federal government, or their agencies.

Adoption
Proof of legal adoption to establish paternity outside of being a biological parent.

Petitioning for Paternity
A petition to establish paternity must be created and filed with the Juvenile and Domestic Relations Court, with the Circuit Courts having concurrent jurisdiction in matters pertaining to paternity.

Contact Your Family Law Attorney
Paternity can be complicated, especially if multiple potential fathers are involved, and knowing your rights, options, and responsibilities are important. If you have questions concerning paternity, ask your family lawyer, like Patricia Tichenor or Camellia Safi, the attorneys at The Law Office of Patricia E. Tichenor, P.L.L.C. in Leesburg, Virginia. We are the caring professionals families can turn to when they need answers, guidance, or defense. Contact us today.

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