Can I get child support if we have equally shared physical custody of our children?
The answer depends on the parents’ incomes. Many people assume that equal time means no child support. That is sometimes true but more often some support will still be due.
Child support in Virginia is determined according to two formulas. If both parents have the children overnight more than 90 days in the year, they use the shared custody formula. If one parent has 90 or fewer overnights a year they use the sole custody formula.
Both formulas are based on the parties’ incomes, the cost of daycare and the cost of health insurance for the children. The shared custody formula also takes into account the amount of time the children spend with each parent.
In the case of equally shared physical custody where one parent makes more than the other, the guideline formula will have them pay something. The bigger the difference in incomes, the more that amount will be.
The formulas are in Virginia Code Section 20-108.2.
At what age can a child in Virginia choose which parent they live with?
Parents who ask this question are often hopeful that at age 12 their child will be allowed to choose to come live with them. The answer, however, is that under Virginia law, children do not have an absolute right to choose which parent they live with, regardless of how old they are.
Under Virginia Code Section 20-124.3, the judge in a Virginia child custody case is required to consider 9 separate factors in deciding who the child will live with.
The child’s preference is number 8 of those 9 factors. The exact wording of the law is: “The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.”
Applying this language literally, two things must be present before the judge can consider the child’s preference. The first is, that the preference must be reasonable. If the child prefers one parent’s home because that parent does not require them to comply with any rules, the judge could conclude the preference is not reasonable and disregard it for that reason.
The other is that the child must possess “reasonable intelligence, understanding, age and experience to express such a preference….” So, the younger a child, the less weight their preference would be given. The more the child shows intelligence and understanding, the more weight their views will likely carry.
Do I need to file for separation?
The Virginia Code Section concerning grounds for divorce only requires that the parties be actually separated. In Virginia there is nothing you need file to make a separation “official.”
It is a good idea to do something to mark the date you separated. It takes two things to be separated. You need to act like you are separated and you have to intend to end the marriage.
Stop having sexual relations with your spouse. Don’t do domestic chores like cooking, cleaning and laundry for your spouse. Stop wearing the rings. Don’t mix your finances.
And send an email or a letter telling the spouse you intend to end the marriage and keep a copy.
How do I know if my marriage can be annulled?
Annulments are unusual in Virginia. Not many people qualify to have their marriage annulled.
The circumstances where an annulment is available are laid out in Virginia Code Section 20-89.1. In the few cases where annulment is available it is most often because one spouse was previously married and did not get divorced before marrying again. Because that party was not free to marry, the later marriage is invalid and can be annulled.
We’ve been married less than 10 years, can my spouse get part of my military pension?
Yes. There is a common misconception that a spouse can only share in a military pension if the marriage lasted more than 10 years. This is not true. A share of the pension can be awarded regardless of the length of the marriage.