This decision overrules the Court of Appeals’ prior interpretation that required intent only at the time of initial separation. The Court emphasized that while temporary doubts or mixed signals may occur during a separation, the prevailing, continuous intent to end the marital relationship must exist for the full duration.

Why it matters: This decision aligns Virginia law with longstanding practice, reinforcing that separation is not just physical, it must be accompanied by a sustained intent to end the marriage. This clarity helps protect the integrity of the separation-based divorce process and guides both clients and attorneys on how to properly establish grounds for divorce.

Bottom line: Virginia spouses pursuing no-fault divorce must show an uninterrupted intent to remain permanently separated, intent matters, and it must last.

Need clarity on how this ruling could impact your divorce case? The recent decision in Lisann v. Lisann underscores how critical it is to document and maintain consistent intent during separation. Our experienced family law attorneys are here to guide you through the legal complexities and help you protect your rights every step of the way.

Contact us now to schedule a confidential consultation and ensure your case is built on a strong, compliant foundation.

In this case, Judge Bernhard, who was the presiding judge in this case, stated:

“Allowing a child’s preference alone to constitute a material change in circumstances would open the door for parents to pressure and manipulate their children into saying they wish to live with one parent over the other.”  “Additionally, if a child’s preference were enough, children may often change their minds as to their preferences without thinking about what is truly best for them, or may change their minds based on interactions with their parents at any given time, thus unduly drawing courts into more family disputes.”

Judge Bernhard also analyzed this issue from a statutory point of view.  Judge Bernhard argued that his ruling is consistent with Va. Code § 20-124.3, which contains the list of factors to determine the best interests of the child with the reasonable preference of a child being one of them.   Thus, it would be redundant to consider preference of a child twice, first in deciding whether a material change in circumstances has occurred and then if said change is in the best interest of the child.   Consequently, “if a child’s preference were important enough on its own to be a change in circumstances, then that factor should be enough on its own for the best interests of the child analysis.”

If you or someone you know is looking to petition for child custody or child custody modification, don’t hesitate to contact us. 

As with most legal matters relating to children in Virginia, the central question for the court will always be what is “in the best interest of the child?”

When preparing for a custody hearing, even the most well-intentioned petitioners may face some pushback from Virginia courts when faced against factors found in Virginia Code Section 20-124.3, which judges MUST carefully consider before awarding custody to any one parent or any other qualified individual with legitimate interests.

Chapter 6.1 of the Virginia Code defines legal terms, procedures, and factors that the Courts will use as a rubric to scrutinize the petitioning party’s request for custody. A petitioning parent must be prepared to convincingly demonstrate why the following factors fall in his or her favor:

• The age and physical and mental condition of the child including their changing developmental needs;
• the age and physical and mental condition of each parent;
• the relationship existing between each parent and each child, including each parent’s ability to accurately assess and meet the emotional, intellectual, and physical needs of the child;
• the needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers, and extended family members;
• the role that each parent has played and will play in the future, in the upbringing and care of the child, which may include beyond attaining the age of majority;
• the propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
• the parent’s willingness and cooperation in resolving matters affecting the child;
• any history of family abuse, sexual abuse, child abuse; or an act of violence, force, or threat that occurred no earlier than 10 years prior to the date a petition is filed; and
• any other such factors as the court deems necessary and proper to the determination.

Custody cases can be tricky, full of procedural hurdles, evidentiary dilemmas, and rife with emotion that an experienced attorney can help client to navigate. There is no one size fits all approach, so our attorneys can tailor fit the best arguments and mitigate any unfavorable factors in your quest to petition for custody.

If you or someone you know is looking to petition for child custody or child custody modification, don’t hesitate to contact us.

Special Immigrant Juvenile Status (SIJS) allows certain children who came to the United States from another country and cannot be reunified with one or both of their parents to obtain lawful permanent immigrant status. Juveniles seeking SIJS first begin in a local state court after abuse, abandonment, or neglect has occurred.

In Virginia, to qualify for SIJS five requirements must be met:

Prong 1: The child must be present in the United States

Prong 2: The child shall not be married

Prong 3: The child must be under the age of 18 at the time of filing of the petition with the court

Prong 4: A valid court order from the Juvenile and Domestic Relations District Court (J&DR) making all of the following findings:

A) that the child is dependent on the court or in the custody of a state agency or department, or another individual or entity appointed by the court;

B) that the child cannot be reunified with one or both of their parents due to abuse, abandonment, neglect, and/or a similar basis under state law; and

C) that it is not in the child’s best interests to return to their country of nationality or their/their parent’s last habitual residence.

Prong 5:  Must have sought the court order to obtain relief from abuse, neglect, abandonment, or a similar basis under state law and not primarily to obtain an immigration benefit.

Prong 1, Prong 2, and Prong 3 are relatively easy to understand. However, Prong 4 requires more attention. To initiate Prong 4 and to satisfy Prong 5, a petition for custody must be filed with the J&DR court in the appropriate venue. In the custody petition, there must be an allegation of neglect, abandonment, and/or abuse of the child, on whose behalf the custody petition is being filed. This allegation, in turn, will prompt the court to appoint a guardian ad litem to represent the child’s interests.

Virginia Code dictates “prior to the hearing by the court of any case involving a child who is alleged to be abused or neglected or who is the subject of an entrustment agreement or a petition seeking termination of residual rights, the court shall appoint a discreet and competent attorney at law as guardian ad litem to represent the child.”

Guardian ad litem (GAL) roughly translates as “guardian for the suit.” “The GAL must vigorously represent the child, fully protecting the child’s interest and welfare,” Rule 8.6 Virginia Supreme Court Rules. A GAL, therefore, is an attorney who acts as an investigator and advocates for the child’s best interest. In SIJS cases, the GAL will also help the court to determine whether abuse, neglect or abandonment occurred, and if it is safe for the child to return to their country of nationality.

The GAL will act as an investigator by conducting interviews with the child’s doctors, teachers, or other relevant parties in their investigation to determine the facts of the case.

The GAL will be able to speak with the child privately at the child’s school, home, or in the GAL’s office. However, the GAL may not speak with parents who are represented by legal counsel without the permission of the parents’ attorneys. During the GAL’s investigation, they may do home visits to determine the safety of the child’s living arrangements.

As an advocate for the child’s best interest, the GAL will be involved, as appropriate, in all pre-trial conferences and negotiations, including phone calls, formal or informal conferences, and mediation. The GAL will appear in court for hearings prepared to represent the child’s interests. Throughout the custody proceedings, the GAL will act as an attorney and can call witnesses, provide independent evidence, file motions, pleadings, and appeals, cross-examine witnesses, and offer exhibits. If the child is asked to testify, the GAL will help determine if the child should testify or if the court should make other methods available. If the child does need to testify, the GAL will prepare the child to do so.

If the child has expressed wishes contrary to the GAL’s recommendation, the GAL will notify the court of the child’s wishes. If the GAL believes the child to be uncooperative or the child’s wishes to be influenced by a parent or guardian, the GAL is obligated to inform the court of these beliefs as well. In certain circumstances, the GAL will request the court to appoint a separate counsel for the child.

Once the GAL has concluded their investigation, the GAL will make a recommendation to the J&DR Court. Often the GAL helps the court to determine what would be in the child’s best interest. In cases where the Court makes a final decision, and the GAL does not believe the decision is in the best interest of the child’s welfare, the GAL may appeal the decision.

In any situation, but especially in SIJS cases the GAL plays a very important role in the proceedings.

Every situation is different with varying levels of complexities. Navigating this process is often daunting. If you have any questions regarding this process and believe someone you know or love is eligible, please contact us.

There are many tropes and bitter jokes around the American legal system, and especially its costs.  We’ve all heard the cynical question: “How much justice can you afford?” To a certain extent, of course, this stems from a basic truth: if you can afford to pay legal fees without significant constraint, you will usually be better prepared, and may overpower the other party in a lawsuit.  Resources are key in warfare – be it actual, or just in the courtroom.

But, in divorce cases, there is, thankfully, a legal device provided by the legislature, that can be a game-changer for less financially secure spouse.  It has a fancy Latin name, and it is a remarkable opportunity.  It is called pendente lite relief, and it is provided for in Virginia Code Ann. 20-103 (A). “Pendente lite” essentially means during the litigation.  What it means for the financially deprived spouse, is this: while the lawsuit is pending, that party is entitled to request support and other temporary relief from his or her spouse, in order to enable him or her to survive financially, as well as to be able to vigorously litigate the case.  

 If our clients are in the unfortunate situation of being the financially deprived spouse, the very first thing we do, along with filing the complaint for divorce, is filing a motion for pendente lite relief, which also normally includes our request for temporary spousal support and an award of pendente lite legal and expert fees. Every single time, this move has changed the balance of power in the litigation, and our clients have been able to obtain a better result than they could have ever expected.

 If you have questions or simply need help in your divorce case, feel free to contact us.

A Pre-Marital agreement (also called a “prenuptial agreement” or “prenup”) is a useful tool to protect your assets when you’re planning on getting married. A prenup can include many features. Most prenups will define certain pieces of property that the couple owned before they were married as “separate property.” In the event of a divorce, a Court would usually defer to the prenup’s definition as an agreement between the couple, rather than litigating what property could be divided in the divorce. A prenup can also include provisions to stop either spouse from asking for spousal support or attorney’s fees in the event of a divorce.

However, while a prenup can be used in many different ways, it also has a lot of requirements to be enforceable. While statutes lay out a few of these requirements, many of the important things a court will consider come from case law. For instance, courts will want to make sure that each side had an opportunity to ask a lawyer about their prenup, that the prenup doesn’t create a “gross disparity” in how it divides future assets, and that both sides fully disclosed all their existing assets in the agreement.

Indeed, a large part of a divorce case when a prenup is involved can be a challenge to the validity of a prenup. One spouse might claim that part or all of the prenup is “unenforceable” or “unconscionable” for a number of reasons. For instance, if only one member of the couple works, a prenup that lets that member keep all the money they earned during the marriage may be considered “unconscionable”, although a court would need to make this decision and would consider many other factors.

Another important consideration a court will look to when deciding if a prenup is enforceable is when it was signed. Essentially, a court will want to see that both sides had an opportunity to have a lawyer advise them about the prenup before signing it. If it looks like one party was pressured into signing the prenup, a court is less likely to enforce it.

Recently, in a case styled Remillard v. Remillard, the Court of Appeals of Virginia ruled that a prenup was unenforceable, because the agreement created a “gross disparity.” Essentially, the court took issue with the agreement because the groom failed to disclose $10 million in assets and because the prenup was signed the day before the marriage.

One important part of any prenup is a disclosure of assets. The prenup should include an addendum where each member of the couple lists their real property (such as land or houses), valuable personal property (such as jewelry), businesses, and bank or investment accounts. In the recent case, the groom claimed that the bride should have known about the $10 million in assets he chose not to disclose, because the bride worked at his property management business. However, the Court ruled that the bride’s general awareness of the Groom’s assets did not amount to a “fair and reasonable disclosure.”

The Court considered this alongside the timing of the agreement. The facts showed that the groom gave the bride the agreement the day before the wedding and told her that, if she didn’t sign it, the wedding was off. While there is no set deadline by which a couple must sign a premarital agreement, it’s best to do so as far ahead of the wedding as possible. At the very least, the Court easily decided that the day before the wedding didn’t give the bride enough time to consult an attorney.

A pre-marital agreement can be a great way for you and your spouse to protect your assets. While every wedding should be based on the idea of being together forever, a pre-marital agreement simply provides a safety net for both people—it doesn’t mean you don’t take your wedding seriously.

If you’re planning your big day and think a pre-marital agreement may be right for you and your future spouse, don’t hesitate to contact us!

Since contested divorce cases can take approximately a year (and in certain cases even longer) to be fully adjudicated in court, each party to the litigation has a right to request certain temporary relief from the court while their case is pending in court.  As a party to a divorce litigation, you can request, among other things, the court to order your spouse to provide the following pendente lite (i.e., temporary) relief: (a) spousal support, (b) provision of health insurance coverage, (c) payment of certain marital debts, (d)  advancement of attorney’s fees to enable you to continue with litigation, (e) determination of child custody*, (f) child support, and (g) exclusive possession of the marital home.  See Va. Code Section 20-103.

In the Fairfax County Circuit Court, in order to obtain this temporary relief, you would need to file a motion (essentially a request) with the Court and schedule it to be head on a Friday at 11:30 a.m. during the Domestic Relations Docket.  Provided you properly accomplished the above two tasks, you will now need to prepare for the pendente lite hearing, which normally cannot exceed 30 minutes and must be in accordance with the following strict procedural requirements:

• Prior to the hearing, but no later than 9:45 a.m. on the morning of the hearing, you and your spouse (normally through your attorneys) must exchange the documents supporting your respective pendente lite positions, such as guideline support worksheets, appropriate documentation showing the amount of present regular income for each party, the cost of work-related child care, and the cost of medical insurance monthly premium for the children.
• If you are represented by counsel, prior to the beginning of the hearing, the attorneys must provide a completed certification that they have exchanged all documentation upon which they intend to rely to establish the current incomes of the parties, and, if child support is requested, childcare costs, health insurance cost and what they content is the presumptive amount of child support pursuant to Va. Code Section 20-108.2.
• At the commencement of the hearing, counsel should present the following to the presiding judge:

1.  One fully completed certification endorsed by each counsel of record.
2. Each side’s proposed guideline support worksheet based on the party’s position.
3. All documents supporting each party’s position, including the documents mentioned above (each of the documents will be deemed received in evidence subject to cross-examination, without either party having to formally move for its admission, subject to cross-examination and striking, if appropriate).

• After each party is sworn, your attorney, as a moving party, will have up to three (3) minutes to present (or proffer) to the court the relevant issues and all facts the attorney would seek to elicit on direct examination from you.
• The attorney for your spouse will then have seven (7) minutes to cross-examine you by primarily asking leading questions requiring you to respond either “yes” or “no.”
• After the cross-examination has been completed, your attorney will have two (2) minutes for redirect questions, which are primarily designed to clarify or remedy the statements you made during your cross-examination.
• After this, your spouse will take the stand and the same procedure will be repeated with your attorney now having a chance to cross-examine your spouse for seven (7) minutes.
• At the end of your spouse’s testimony, each of the attorneys will have two (2) minutes to make a closing argument in support of their clients’ respective positions.
• The hearing will conclude with the presiding judge making appropriate findings and ordering the pendente lite relief consistent with these findings.

* Unfortunately, the Fairfax County Circuit Court, despite the applicable statute, does not allow the parties to request temporary child custody, instead preferring to schedule a full-blown separate custody trial as soon as possible.  This is done because the Court believes that a pendente lite custody hearing will be duplicative to the final custody trial and is contrary to the best interests of minor children involved.

Please contact us to schedule a consultation with one of our attorney to obtain more information about this topic and to discuss your case.

The answer, as with almost everything in the law, is “it depends.”  First, in Virginia, the grounds for divorce are provided in the statute.

Va. Code Ann. § 20-91A (6) states:

A divorce from the bond of matrimony may be decreed:

Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act; (emphasis added.)

If a spouse can demonstrate cruelty by the other, then it is not unreasonable for him or her to have left the marital home:

Desertion as a ground for divorce does not depend on who actually leaves the marital home. Rather, “it means desertion of the marital relationship,” and it “may be ‘constructive,’ for cruelty by one party, which results in the other party’s enforced separation.”

Buchanan v. Buchanan, 2003 Va. App. LEXIS 494, *9, 2003 WL 22232768. (internal citations omitted.) (emphasis added.)

One person’s idea of “cruelty” may be very different from another’s, and a perception of being a victim of cruelty is highly subjective.  When will a court find the other spouse’s actions to have amounted to “cruelty”, so as to allow for the divorce based on constructive desertion?

Virginia cases have set the same threshold:  the acts of cruelty

“must be very serious and such as amounts to extreme cruelty, entirely subversive of the family relations rendering the association intolerable.”

Zinkhan v. Zinkhan, 2 Va. App. 200, 209, 342 S.E.2d 658, 663, 1986 Va. App. LEXIS 260, *18-19

In practical terms, the spouse who leaves the marital home because of the other spouse’s abuse, must demonstrate more than one incident of bad behavior, unless it is extreme.  The departing spouse must demonstrate that it is unsafe to continue to reside with the offending spouse.

Generally, Virginia courts have shied away from finding cruelty or constructive desertion when there is no element of danger or threat of physical harm to the departing spouse.  In doing so, they have relied on an 1878 decision by the Supreme Court of Virginia, which states:

[W]hat merely wounds the feelings without being accompanied by bodily injury or actual menace — mere austerity of temper, petulance of manner, rudeness of language, want of civil attention and accommodation, or even occasional sallies of passion that do not threaten harm, although they be high offenses against morality in the married state, does not amount to legal cruelty.

Latham v. Latham, 71 Va. 307, 320-321, (1878).

However, an argument can be made that certain words and threats that do not directly refer to physical harm, can also amount to cruelty and constructive desertion.  A clear example of such behavior is when one of the spouses maliciously manipulates the legal system against the other, either by obtaining frivolous civil protective orders, or by frivolously calling the police.  Threats of or actual calls to immigration enforcement officials against a foreign spouse, which could deprive that spouse of their legal immigration status, can seriously endanger the foreign spouse, when returning to their home-country would be unsafe.

Please contact our office to discuss your particular situation with one of our attorneys.

If you’re worried about being arrested by Immigration and Customs Enforcement (ICE) because you’re living in the United States without immigration documents or if you overstayed a Visa, it’s reasonable to be careful—many people in this situation spend a lot of time looking over their shoulder.

If you have a civil court date you’re supposed to attend, you might also be very concerned that ICE will arrest you at or outside the courthouse. To be fair, the news has had plenty of stories of this happening, so you might be thinking about skipping your hearing altogether. Skipping your hearing, however, could have serious consequences for you personally and even make your immigration situation worse.

Failing to appear for a civil hearing can result in many serious negative consequences. You are required to appear before court when you receive a summons and, first, a Judge can hold you in “contempt”—which is a legal ruling that you disobeyed a court order. If you are found guilty of contempt, a Judge may impose a number of punishments. These could include requiring you to pay money to the other party and even jail time. Additionally, the Judge may rule against you at the hearing—requiring you to pay more for child or spousal support or reducing your visitation with your children.

When you’re thinking about the immigration consequences, it’s important to remember that ICE’s enforcement is very discretionary. For instance, if you don’t have any criminal or civil violations, they’re less likely to expend resources attempting to arrest you (that doesn’t mean they won’t, just that they are less likely to). However, if you are held in contempt for failing to appear at a hearing or failing to pay child support, ICE is much more likely to arrest you. If you fail to appear at a court hearing and are later put into immigration proceedings, your failure to appear will probably be used against you, making it more likely that you will be unable to leave detention and more likely that you will be deported.

Your county courthouse may not be as dangerous as you think, either. Many of our local county courthouses are unable to voluntarily provide information to ICE. For instance, in January, 2021, Fairfax County adopted a policy stopping all county employees from voluntarily cooperating with ICE.  In July, 2022, Arlington County adopted a similar policy. While your name would still appear on a public docket, this means that ICE can’t simply ask a county court to send them notices of when certain people will be at the courthouse. Additionally, ICE agents cannot arrest people inside a courthouse for most immigration violations.

Of course, many of these situations are very complicated and different for each person. If you have a hearing soon and are worried about ICE, please contact us  and ask to arrange a consultation.

In Virginia, if you are separated from your spouse for more than six months and you have no children then you can get a no-fault divorce only if you and your spouse have entered into a written Property Settlement Agreement. This means, if you and spouse have already worked on all the financial issues arising out of your marriage and ready to formalize that understanding into a written document then Contact Us and we will take it from there. Neither you nor your spouse will have to appear in court and we will work for you to obtain a divorce. For pricing of such uncontested divorce, please click here.