Practice Area Category: Divorce

Skilled and Reliable Presentation In All Areas of Divorce & Family Law

Going through a divorce can be a very stressful and confusing time in anyone’s life. At Khanna Law, we help you by providing each client with experienced, knowledgeable and reliable representation in order to maximize your best interest and steer you in the right direction throughout the divorce process.

We are experienced in both litigation and negotiations and take the time to come up with a strategy tailored to meet your specific needs.

We are also extremely cognizant of the fact that our clients look to us for guidance during this difficult time and we believe in providing good customer service. At Khanna Law, our client’s phone calls are always promptly answered or returned as soon as possible, emails get immediate responses and we promote an environment where open communication is encouraged. We also strive to provide you quality legal services while keeping your costs as low as possible. We have experience representing our clients in all areas of family law.

Contested Divorce

A couple goes through a contested divorce process when they are unable to agree on one or more issues regarding divorce (eg.: Child Custody and Support, Spousal Support, Division of Property). In this scenario, either the husband or the wife will file a divorce case based upon one of Virginia’s fault grounds or one year (1) year separation and ask the Court/Judge to make a decision regarding any issues they cannot agree upon.

Fault Grounds for Divorce:

Adultery, Sodomy, Buggery: In Virginia courts, adultery has to be proved by “clear and convincing” evidence.

Cruelty and Reasonable Apprehension of Bodily Harm: This fault ground requires a party asserting it to prove physical or extreme emotional harm by the other party.

Willful Desertion or Abandonment: When one spouse unjustifiably and willingly leaves the marriage without the consent of the other spouse. This fault grounds also includes “constructive desertion”.

Incarceration for felony of more than a year.

Going through a contested divorce can be a long, complex and stressful process which will include the following:

• Preparing, filing and serving the divorce complaint (a petition for divorce stating the grounds for the breakdown of marriage and facts of the case surrounding those fault/no fault grounds).
• Preparing and filing answer and counterclaim to the divorce complaint.
• Engaging in the “discovery” process – a process prescribed by the courts to allow parties to gather information regarding the other party/spouse and from third parties which they may need for trial.
• Discovery includes sending out interrogatories, request to produce, request for admissions, deposition, subpoenas etc.
• pre-trial legal motions and hearings.
• Sending settlement proposals, counter proposals and negotiations between attorneys/parties.
• Parties may also choose to engage a mediator to see if they can settle the case through mediation.
• if settlement fails, preparing for trial.
• Appealing a trial verdict if a party has grounds for appeal.

Contested divorces can be complex and maneuvering your way through the legal system can be stressful. Therefore, before you begin your legal journey, you should definitely speak with an experienced divorce lawyer who can provide you with information about your rights, the legal divorce process and provide effective, skilled and efficient representation.

At Khanna Law, PLLC we successfully help our clients navigate the complicated contested divorce process on a regular basis. We pride ourselves in guiding you, protecting your rights and providing dedicated, intelligent and reliable representation.

Uncontested Divorce

In an uncontested divorce, both the spouses have an agreement about all issues involved in the divorce case. These issues can include: custody, visitation, spousal support, child support and division of marital assets and debts.

An uncontested divorce does not require a trial and the time and expense of litigation as the parties agree on all the issues. So not only does an uncontested divorce take less time than a contested divorce, but it is also less stressful and substantially less financially burdensome than a contested divorce.

Often spouses will begin the process with filing for a contested divorce and then, before the actual trial, reach an agreement regarding various issues involved. This is called a settlement. One of the biggest advantages of a settlement is that neither spouse will appeal it, because both by definition agree to it and thus are presumably happy with it. Both parties can therefore be assured of finality and an end to litigation.

If you reach a settlement with your spouse, it is essential to have the agreement memorialized in such a way that it makes the settlement legally binding and enforceable. You also want to ensure that while the agreement is being negotiated and drafted, your attorney is careful to include and think of any and all issues that may cause disagreements and litigation in the future.

At Khanna Law, PLLC we successfully help our clients navigate the complicated divorce process on a regular basis. We pride ourselves in guiding you, protecting your rights and providing dedicated, intelligent and reliable representation.

In an uncontested divorce, both the spouses have an agreement about all issues involved in the divorce case. These issues can include: custody, visitation, spousal support, child support and division of marital assets and debts.

An uncontested divorce does not require a trial and the time and expense of litigation as the parties agree on all the issues. So not only does an uncontested divorce take less time than a contested divorce, but it is also less stressful and substantially less financially burdensome than a contested divorce.

Often spouses will begin the process with filing for a contested divorce and then, before the actual trial, reach an agreement regarding various issues involved. This is called a settlement. One of the biggest advantages of a settlement is that neither spouse will appeal it, because both by definition agree to it and thus are presumably happy with it. Both parties can therefore be assured of finality and an end to litigation. If you reach a settlement with your spouse, it is essential to have the agreement memorialized in such a way that it makes the settlement legally binding and enforceable. You also want to ensure that while the agreement is being negotiated and drafted, your attorney is careful to include and think of any and all issues that may cause disagreements and litigation in the future.

At Khanna Law we successfully help our clients navigate the complicated divorce process on a regular basis. We pride ourselves in guiding you, protecting your rights and providing dedicated, intelligent and reliable representation.

Every parent who is going through a divorce or child custody/visitation proceedings is concerned about the welfare of their child, which parent they will live with and who gets to make decisions regarding their welfare.

In Virginia, there are two forms of custody: Legal Custody and Physical Custody.
Legal custody of the child is determined by who gets to make important decisions regarding the child’s well-being.

Physical custody, on the other hand, is determined by with which parent the child will primarily live.

In Virginia, legal custody can be awarded solely to one parent or jointly to both parents. Joint legal custody means that both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child.

child custody
It is very common in Virginia for joint legal custody to be appointed to both parents so they both can be involved in important decisions of their child’s life.

A Court may award joint legal custody to both the parents and award physical custody to one parent, with the other parent receiving visitation with the child.

The Court may also decide that the parents can have shared physical custody of the child, where the child will spend a significant amount of time with both parents.

In making the custody determination, the Court has to consider what is in the best interest of the child. In order to determine what is in the best interest of a child, the Court takes various factors into account (outlined by VA Code Section 20-124.3).

Factors considered by the court in determining the best interest of the child include:

• Parent’s age, physical and mental health of the parents, age of the child, the existing relationship between each parent and the child, the needs of the child, the role played by each parent in the child’s upbringing and care, the child’s wishes (if of sufficient age, intelligence and maturity) and the ability of each parent to foster a strong relationship between the child and the non-custodial parent. The Court also considers the ability of each parent to resolve any dispute regarding the child.
• Both legal and physical custody, as well as visitation orders can be modified by showing that a material change in circumstances has occurred since the original determination which warrants a change in custody.

At Khanna Law we successfully help our clients navigate the complicated custody litigation process on a regular basis. We pride ourselves in guiding you, protecting your rights and providing dedicated, intelligent and reliable representation.

Child support is the monetary obligation that a non-custodial parent pays to the parent who has custody of the child. In Virginia, both parents are financially responsible for the child, and the law presumes that the parent with whom the child resides primarily pays for many of the child’s most expenses and needs, therefore, only the noncustodial parent will be responsible child support.

Child support can either be awarded administratively at the Division of Child Support Enforcement (DCSE) or through judicial means in the Juvenile and Domestic Relations Court (J&DR Court) or in the Circuit Court as part of a separation agreement or divorce decree.

The Process of Receiving Child Support

The establishment of a Child Support Order can be accomplished either by an independent petition in J&DR Court or in the Circuit Court as part of a divorce case. During a hearing to establish child support, a court will evaluate the evidence presented which usually includes evidence regarding parties’ income, monthly health insurance cost of the child, monthly work related child care cost etc., and issue a Child Support Order if warranted. At that time, the court may also put into place a mechanism for enforcement of the Child Support Order.

The Court will also order any back-child support owed (calculated from the time a child support petition or divorce petition requesting child support was filed), also known as child support arrears if any is owed.

Determination of Child Support

The determination of child support is different for every family and even for each child within a family. Courts will look to set child support in an amount sufficient to provide for a child’s necessary expenses, which include food, shelter, clothing, education, and health care. Courts in Virginia use the Code of Virginia’s Child Support Guidelines to set the amount of support based upon the parent’s income, time with the child, and other financial matters.

Additionally, the court is permitted to consider the following factors when determining the final obligation amount: the needs of the child; the child’s age; the ability for the noncustodial parent to pay the support obligation; any special needs the child may have; costs for child care; monetary support for other family members; and, other factors that necessary to provide a fair Child Support Order for the child.

The amount of support calculated by using the Child Support Guidelines is presumptively correct thus, if the court wishes to set a different amount based upon the previously mentioned factors, it must give a justification, in writing, stating the reasons for the deviation. Above all, when setting the child support amount, the court will always do what is in the best interest of the child.

Duration of Child Support in Virginia

Child support payments may terminate when the child reaches 19 years old or graduates from high school, whichever occurs first, unless the child has a mental or physical illness requiring continued support by the custodial parent. Sometimes whether a child is emancipated may be contested. It is important that you consult an attorney if there are issues regarding whether your support order should continue. Also, if the child’s parents agree to extend child support beyond that required in the statute by a written agreement, the court will not typically step in to change the terms of that agreement.

At Khanna Law, PLLC we successfully help our clients navigate the complicated child support process on a regular basis. We pride ourselves in guiding you, protecting your rights and providing dedicated, intelligent and reliable representation.

In Virginia, a person who is financially dependent on his/her spouse, is eligible to receive spousal support. The amount of spousal support awarded depends upon the needs of the party seeking it and the ability of the payor to pay.

Where Do I Ask for Spousal Support?

You can file a petition for spousal support in a Juvenile and Domestic Relations District Court or request it as part of your complaint or petition for divorce in the Circuit Court. The amount of spousal support can be agreed upon by the parties via a settlement agreement, or in the absence of a settlement agreement, a Virginia judge can determine the amount of spousal support to be paid, if any, after hearing testimony and viewing evidence during a trial.

How is Spousal Support Calculated by the Virginia Courts?

Pendente Lite Spousal Support

While your spousal support case or a divorce case is pending, the court can award pendente lite spousal support, which means spousal support received while litigation is pending (sometimes known as temporary spousal support). Pendente lite support stays in effect while your case is pending and until a final determination regarding spousal support can be made at the final trial.

If the parties have minor children in common, the presumptive amount of pendente lite spousal support is calculated by taking the difference between 26 percent of the payor spouse’s monthly gross income and 58 percent of the payee spouse’s monthly gross income.

If the parties have no minor children in common, the presumptive amount of pendente lite spousal support is calculated by taking the difference between 27 percent of the payor spouse’s monthly gross income and 50 percent of the payee spouse’s monthly gross income.

The court may deviate from the presumptive amount of spousal support for good cause shown, including any relevant evidence relating to the parties’ current financial circumstances or the impact of any tax exemption and any credits resulting from such exemption that indicates the presumptive amount is inappropriate.

Keep in mind that the above stated formula set forth is only applicable to cases where the parties’ combined monthly gross income does not exceed $10,000.

Spousal Support Determination by the Court at Final Trial

At the trial, when deciding whether to award spousal support and the amount of spousal support, the court takes into consideration evidence as it relates to factors stated in Virginia Code Section 20-107 (E ). These factors include the following:

• The earning capacity, obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit-sharing or retirement plans, of whatever nature
• The standard of living established during the marriage
• The duration of the marriage
• The age and physical and mental condition of the parties and any special circumstances of the family
• The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home
• The contributions, monetary and nonmonetary, of each party to the well-being of the family
• The property interest of the parties, both real and personal, tangible and intangible
• The provisions made with regard to the marital property under § 20-107.3
• The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity
• The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability
• The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market
• The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party and
• Such other factors, including the tax consequences to each party and the circumstances and factors that contributed to the dissolution, specifically including any ground for divorce, as are necessary to consider the equities between the parties.
• How Long Will I Receive Spousal Support for?

Spousal support, whether ordered by the court or agreed to by the parties, can be paid in periodic (i.e., bi-weekly or monthly) payments for a set duration, such as five years; periodic payments for an unspecified duration; in the form of a lump sum award; or any combination of the above.

Court-ordered spousal support terminates automatically upon the death of either spouse or the remarriage of the spouse receiving support.

Usually, a party is more likely to receive an award of spousal support with no defined duration (spousal support will continue until death of either party or remarriage) if there was a long-term marriage and the party seeking support is nearing or at retirement age, or unable to become sufficiently employed to support themselves.

If the marriage is of short duration or the party seeking divorce is younger, the court may award spousal support for a short and limited duration. This is sometimes referred to as “rehabilitative alimony,” which is awarded in order to allow the party receiving the support some time, opportunity and means to educate themselves or develop skills and experience to become self-sufficient.

In addition to awarding spousal support, or in cases where spousal support is not warranted at the time, the court may grant either or both spouses a reservation to request spousal support in the future.

Can I Be Barred From Receiving Spousal Support?

Spousal support may be barred if the opposing party proof of adultery on the part of the person seeking support. However, there are exceptions to this rule and you should seek the advice of your attorney to determine whether they apply to you.

Spousal support is not barred in Virginia for desertion or cruelty.

Can the Spousal Support Amount Be Changed or Modified in the Future?

If support is awarded by the Court, then either side may later petition for an increase/decrease upon a showing of significant or material change in circumstances.

Further, a payor spouse is permitted to petition the court for termination of spousal support in cases where the recipient spouse has cohabited with another person in a relationship analogous to marriage for a year or more. In the event the recipient spouse remarries, spousal support terminates by operation of law.

Contact Khanna Law if you are in need of a spousal support lawyer. We are here to help listen, guide and represent you.

If you are considering marriage or getting married soon, you may have contemplated whether or not you should enter into a premarital or a prenuptial agreement with your significant other. Reasons couples may want to enter into a prenuptial agreement, range from wanting to protect existing assets, future assets, income, and inheritance, to protection from a potentially expensive and stressful divorce in the future.

Virginia’s Premarital Agreement Act, Code §§ 20-147 through 20-155, allows parties to enter into a premarital agreement and settle the rights and obligations of the parties upon one party’s death or in the event of the divorce.

Despite the stereotype attached to premarital agreements, it is not just for the rich and famous. A premarital agreement can be extremely useful to most people not only in the case of a divorce, but also if one wants to protect property, inheritance, and earnings in the event of their death.

Should I Worry About Custody & Support

While drafting your premarital agreement, don’t spend too much time on custody & support. Virginia law requires the courts to consider a variety of factors when determining custody. These include relationship of each parent with the child, a parent’s ability to meet emotional, intellectual and physical needs of the child, age, physical, and mental condition of the child etc. The court will not take into consideration the custody provisions of the premarital agreement while considering these factors.

Similarly, child support in Virginia is calculated pursuant to the Virginia Child Support Guidelines which takes into account the parties’ gross income among other factors. A Virginia Court will not consider the premarital agreement while determining child support.

A Few Things to Consider

Purpose: The reason you are entering into a premarital agreement will and should always dictate what is included in it. Your reason to enter into a premarital agreement may be to protect your business that you spent your life building or to protect a trust which you inherited from your family. Keep things simple and don’t over complicate the agreement by trying to dictate how things should be in your marriage and how your spouse should act. The goal should be to minimize confusion and litigation costs in the event of a divorce or upon death of one spouse.

Things Change With Time: You should take into consideration that over the duration of your marriage, your circumstances may change. You may agree to waive your right to receive spousal support because both you and your spouse have bright careers ahead and earn a good salary. However, things don’t always remain the same. Once you have children, one of you may decide to take a break and stay at home with the children. Further, your career prospects may change in the future. Make sure you account for those changes and don’t waive any rights (eg. alimony or spousal support) which you may regret later on. A good example of taking future changes into consideration would be that instead of both parties waiving all future spousal support, a good prenuptial agreement would allow a spouse who has a weaker financial status at the time of separation to seek reasonable spousal support and the other spouse to waive spousal support.

Changing Terms Of Premarital Agreement: You can change the terms of a prenuptial agreement by entering into a new agreement. You can also terminate your prenuptial agreement by entering into a written agreement which explicitly allows for the termination of your last agreement.

Can You And Your Spouse Use The Same Lawyer: No, because an attorney has a duty to advise and represent only one party, whether it be a divorce case or drafting a premarital agreement. You and your spouse should both consult their own attorney. If you are attempting to save costs, one party’s attorney can draft the whole agreement and the other can then review it with their client and suggest changes.

What Should I Include in My Premarital Agreement?

What provisions your prenuptial agreement contains depends on various factors such as your age, the assets you want to protect, your present and expected future income etc.

How a young couple entering into their first marriage will structure their agreement will be very different from the provisions considered by an older couple who already have children from their previous marriage.

The younger the couple, the longer the timeline they will have to consider when determining what to do with various issues related to a marriage and divorce. For example. even though both parties may be working before marriage, having children may lead one spouse to give up or hold back on their career. A 30 year old couple getting married may be together for the next 30 years which makes it hard to contemplate and include all the unknowns in the contract.

In contrast, an older couple with one spouse owning a successful business may want to enter into an agreement in order protect the spouse’s business in the event of a divorce or death. That spouse may want to include a provision that protects his or her existing business or any income derived from that business in the event of a divorce.

This is where our previous suggestion regarding knowing the purpose of the agreement and keeping things simple comes into play. You should always remember the reason for drafting the Premarital Agreement. The purpose should be to simplify things in case your marital relationship doesn’t go as planned, not use it to complicate things before or during the marriage.

Our experienced Virginia Divorce Attorney can provide you with invaluable guidance when it comes to drafting your premarital or prenuptial agreement.

To schedule a consultation regarding your prenuptial agreement, call 703-570-4232 or email us at pkhanna@khannalaw.com.

We are located at 12110 Sunset Hills Road, Suite 600, Reston, VA 20190 and serve Fairfax, Loudoun, Arlington, Prince William and all other Northern Virginia Counties.

Establishing Paternity In Virginia

Establishing Paternity means establishing the legal father of a child. By establishing paternity, the father’s name is officially placed on the child’s birth certificate and he is legally responsible for the child.

In Virginia, if a child is born of a marriage, then paternity is automatically established.

If children are born out of wedlock, paternity can also be established voluntarily by both the parents signing under oath the Acknowledgement of Paternity (AOP) under oath. The easiest way to do it is to sign the AOP right after the child’s birth before mother and child are discharged from the hospital.

Paternity can also be established by petitioning the Juvenile and Domestic Relations Court and performing a court ordered genetic test. This usually happens when there is a dispute regarding paternity and the Court is asked to resolve the issue. The mother, the father, the child or the state if the child is receiving public assistance or benefits can petition the court to establish paternity in the county where the child resides.

If after receiving appropriate notice of the court proceeding, the father doesn’t appear in court, the judge can enter a “default order” in his absence, declaring him the legal father. If the father appears in court and the mother and father both agree that the father is the biological father, the judge will immediately issue an order of paternity. If the father challenges paternity, then the Court usually issues and order for the father and child to submit to genetic testing to determine paternity.

Benefits of Establishing Paternity

Establishing paternity means that the child will be not only be able to enjoy a relationship with both his parents, but will also be able to inherit from his father. Once paternity is established, fathers are legally responsible for the children just as much as the mother and so have to contribute towards supporting the children as well.

The biggest benefit to fathers is that once paternity is established, they have a legal right to the child can then petition the court for custody and visitation with their child.

At Khanna Law we successfully help our clients navigate the complicated paternity and custody process on a regular basis. We pride ourselves in guiding you, protecting your rights and providing dedicated, intelligent and reliable representation.

Whether your custody order was entered after a hearing or as a result of an agreement between the parties, it is inevitable that things will change as parties and children move on with their lives. So, what happens if you want to change the custody and visitation order that was entered as a result of your divorce or in a standalone custody and visitation case? Can you modify your custody or visitation order if new circumstances arise?

What if the order was issued when your child was one year old, and now he/she is five years of age and about to start kindergarten? The visitation provisions don’t make sense anymore with his new school schedule, and perhaps the custodial-parent’s work schedule has also changed, and the provisions of your last custody order are not a good fit anymore. What can you do?

The answer is, that depending on circumstances, you can ask for a change in your custody and visitation order. Custody of minor children is based on what’s in their best interest and naturally, that may change overtime. So, Virginia Courts allow for modification of custody depending on circumstances.

What You Need to Show to Modify Custody / Visitation?

Virginia Code § 20-108 allows for modification of a custody or visitation order when (1) there has been a material change in circumstances and (2) it is in the best interest of your child to modify the custody or visitation provisions (or both) of the order.

Who Has the Burden of Proof?

Generally, the party seeking a change in custody has the burden of proving to the court that there has been a material change in circumstances and it is in the best interest of the child to modify custody/visitation.

What Constitutes Change in Circumstances?

What constitutes a material change in circumstances is very fact specific. According to Virginia Code § 20-108 intentional withholding of visitation may constitute a material change of circumstance. However, the statute is not mandatory and if the custodial parent’s actions were reasonable, the trial court may find no change of circumstances.

As stated before, whether or not there has been a material change in circumstances is very fact specific. Some examples of material changes include: relocation of parent; inability by a parent to work together and cooperate with the other parent and effectively co-parent, a parent has remarried or had another child; the child’s safety is in jeopardy with the custodial parent; a parent has violated the current order repeatedly; or the child’s needs have changed over time, for e.g. change in age, needs, preference etc. Goes without saying, that this is a very short list of circumstances that may constitute a material change in circumstances and there may be uncountable facts that may constitute material change.

What if I Do Have a Material Change in Circumstances?

Once a Court determines that material change in circumstances has taken place, it has to determine whether a change in custody or visitation order is in the best interest of the parties’ child.

To determine this, the Court looks at the factors within Virginia Code § 20-124.3. These factors include:

1. The age, physical and mental condition of the child, giving consideration to the child’s changing needs;
2. The age, physical and mental condition of each parent;
3. The relationship existing between each parent and child;
4. The needs of the child, including the important relationships with siblings, peers and extended family members;
5. The role each parent has and will continue to play in the upbringing of the child;
6. Each parent’s propensity to actively support the child’s relationship with the other parent;
7. The willingness and ability of each parent to maintain a close and continuing relationship with the child and each parent’s ability to cooperate in and resolve disputes with the other parent in matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such preference;
9. Any history of family abuse; and
10. Such other factors as the court deems necessary.

If the Court determines that there has been a material change in circumstances since the last custody and visitation order and changing the custody/visitation order is in fact in the best interest of the child, then it will enter a new custody order.

You don’t always have to resort to expensive litigation in order to modify your custody order. The most effective way to get a modification of custody or visitation is by entering into a consent order with the other party. You can negotiate the change with the help of your family law attorney and avoid expensive litigation.

If you believe that you have a material change in circumstances and it is in your child’s best interest to change the custody/visitation order, be sure to speak to our experienced family law attorney at Khanna Law.

To schedule a consultation regarding your prenuptial agreement, call 703-570-4232 or email us at pkhanna@khannalaw.com.

We are located at 12110 Sunset Hills Road, Suite 600, Reston, VA 20190 and serve Fairfax, Loudoun, Arlington, Prince William and all other Northern Virginia Counties.