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The Myth of Legal Separation in Virginia

I frequently receive e-mails or phone calls from prospective clients who wish to start the process of separation. First off, there is no formal legal separation in Virginia. You do not have to go to Court to be separated. You simply separate. However, before you do so, there are lots of factors for you to consider and the actions you take at this time could have long lasting ramifications in future legal proceedings. You are strongly advised to consult with a divorce attorney BEFORE you decide to separate. When I have a prospective client in this situation I usually offer them a low cost consultation so that they can be advised of all of the traps for the unwary.

Before the parties separate, or soon thereafter, is often the best time to enter into a property settlement agreement. This agreement will control custody, visitation, support, and division of the marital property. The great thing about this agreement is that you and your spouse control the terms, not two lawyers and a judge. If a property settlement agreement is entered into quickly, the process of separation usually goes smoothly and all that is left is for the days of the calendar to pass until it is time to file for divorce.


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The Virginia court gives primary consideration to the best interests of the child in determining custody. The court assures minor children of frequent and continuing contact with both parents, when appropriate, and encourages parents to share in the responsibilities of rearing their children. In determining the best interests of a child, the court considers a variety of factors including the age, physical and mental condition of the child as well as each parent, the needs of the child, the role of each parent and the rapport of each parent, and the "willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child," family abuse, and "other factors as the court deems necessary and proper to the determination."
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