Virginia Law FAQ

Click one of the categories below to see just answers to frequently asked questions about that topic. Or scroll down to see all of our FAQs.

What is a retainer agreement or engagement letter?

This is a legal contract between the law firm and the client setting forth the terms of the legal services to be provided and how the client will be charged for the services. A signed agreement is required before our firm is considered to be the client’s representative.

What is a retainer fee?

This is the amount of money that the law firm requires a client to pay to the law firm as a deposit (a down payment) toward the cost of the legal services to be provided. The deposit belongs to the client and is held in a trust account until the money is earned by the law firm. Any amount not used to pay for legal services and for costs paid on behalf of the client is refundable to the client. Some law firms may require retainer fees as high as $5,000 to $10,000. Our retainer fees generally are in the range of $500 to $2,500, because we trust our clients to pay their bills when due. We require some form of retainer fee in all matters except personal injury cases (see “What is a “contingent fee” agreement,” below).

What is a “flat-fee” retainer agreement?

In some cases, after an initial interview, we are able to determine the approximate number of hours and costs that will be involved in providing the legal services requested by the client. In such matters, instead of hourly billing for professional services, we can offer a fixed, or “flat,” fee to cover all services and costs in the retainer agreement. This fee is paid, in part or in full, upon signing the retainer agreement. Some examples of types of services that may be offered on a flat fee basis are step-parent adoptions, uncontested divorces, defending a serious traffic offense or other misdemeanors, drafting a simple will, power of attorney, advanced medical directive, or prenuptial agreement, or writing a letter on behalf of a client.

What is an “hourly-fee” retainer agreement?

Professionals offer their time and expertise. In many situations, the hours and costs required to assist a client with a legal problem or need cannot be accurately determined or estimated during the initial interview. In those matters, the attorney’s time spent on the case is billed on an hourly basis, in increments of 1/10th of an hour. Hourly fee retainer agreements usually are required in contested divorce cases, child custody cases, cases involving litigation, or potential litigation, in court or before administrative boards. The firm will require payment of a retainer fee at the outset of representing a client.

What costs are involved in an “hourly-fee” case?

Most cases involving litigation involve only the payment of a court filing fee to start the case (usually less than $100) and a fee to serve the other party with the complaint (usually about $50 to $75). These fees are not required, of course, if the other party started the case and has already paid them.

Unlike many law firms, we do not charge for the paper used for in-office copying and the receipt of facsimile (fax) communications. We also do not separately charge clients for telephone, fax, and e-mail communications, other than for the time spent by the attorney or paralegal in handling such matters.

As to attorney travel time to and from court for appearances, our firm does not charge the attorney’s hourly-fee rate for this time. This applies whether the trip is to the Fairfax County Courthouse, where most of our cases are tried, or to those farther away in Stafford County or Loudoun County.

In complex cases involving hotly contested issues, clients may have to pay third parties, such as court reporters and expert witnesses, when early settlement is not possible. Examples of such issues in family law cases are the amount and duration of alimony, the custody of minor children, the division of property.

Are initial consultations with an attorney always free?

Generally, initial consultations are designed to determine if we can assist you with your issue or problem and for you to decide if you would like to retain us.   While most initial consultations are cost-free, those involving review of existing documents and/or legal advice usually require payment of a consultation fee. We may request that you submit the documents in advance of the appointment. These issues will be discussed with you when you contact us for an appointment.

Do both my spouse and I need to be living in Virginia in order to get divorced in Virginia?

No. In order to get divorced in Virginia, one of the parties must have been an actual and bona fide resident and domiciliary of the Commonwealth of Virginia for at least six months prior to the filing of the complaint for divorce. In other words, either you or your spouse must have lived in Virginia and had the intent to permanently remain in Virginia during the six months before the divorce complaint was filed. Since domicile can be a complex issue, parties should consult with an attorney in order to avoid filing in the wrong jurisdiction.

There are also special residency provisions that apply to members of the armed forces. Any member of the armed forces who has been stationed in Virginia for at least six months or who has resided in Virginia for six months prior to being deployed overseas would satisfy the residency requirement needed to file for divorce in Virginia.

What is an “uncontested divorce?”

A divorce is considered to be uncontested when the parties have resolved all outstanding issues pertaining to their marriage. Typically, the settlement terms agreed to by the parties are memorialized in a Property Settlement Agreement (PSA), which can be drafted before or after the couple has physically separated. A PSA is a legal contract that can cover a myriad of issues such as the division of property and debts, child visitation and custodyspousal and child support, insurance, taxes, etc.

What is a “no-fault” divorce?

In a no-fault divorce, the party who files for divorce needs only to prove that the couple has been living separate and apart for the mandatory separation period, with the intent that the separation be permanent. For couples without minor children who have entered into separation agreements, the required duration of this separation period is six months. For all other parties, the required separation period is one year.

What is a “fault-based divorce”?

In a fault-based divorce, the moving party must prove that the other spouse committed wrongdoing that qualifies as one of the fault-based divorce grounds recognized in Virginia. Virginia recognizes three main reasons to file for a fault based divorce: adultery, cruelty and desertion/abandonment.

What does it mean for my spouse and I to be “separated” for the purpose of obtaining a Virginia divorce?

In a Virginia divorce proceeding, separation occurs when a couple ceases to live together as husband and wife with the intent to no longer be married. There is no "legal separation" in Virginia. In other words, separation does not require an agreement between the parties or a written notice. Instead, separation is based on the intent to be separated and the actual physical separation of the spouses. Only one person needs to have the intent to live separate and apart.

In most cases, separation occurs when one spouse moves out of the marital residence. However, under Virginia law it is possible for spouses to be considered separated while they live in the same house, although the evidence needed to prove this requires the expertise of an experienced Virginia family law attorney.

What will I need in order to prove that my spouse and I have been separated for the requisite period?

You will need to have a third party over the age of 18 who can verify the date the separation began, that the spouse on that date had the intent that the separation be permanent, and that the separation has been continuous and uninterrupted since that time. The third party can provide this information by deposition, affidavit, or live testimony before the court. The third party witness should be someone who has visited your residence on multiple occasions since your separation.

How is property divided in a Virginia divorce?

Virginia is an equitable distribution state which means that the court divides marital property in a way that it believes to be fair and equitable. The court is not able to divide the separate property of each spouse. The court looks at a number of factors in determining how to distribute and divide marital property. These factors are set forth in Virginia Code 20-107.3.

What are the different kinds of custody arrangements in Virginia?

Sole legal custody: One parent retains sole authority to make all decisions concerning the child. A parent having sole legal custody makes all of the daily decisions about the child's life and all of the major decisions about the child's well-being, including matters of education, medical care and religious development.

Joint legal custody: Both parents share the ability to make decisions concerning the child, even if the child lives primarily with one parent. A parent who has joint legal custody has the right to be an equal partner in making all of the major decisions about the child's well-being, including matters of education, medical care and religious development.

Primary physical custody: One parent provides the primary residence for the child.

Shared physical custody: Both parents share physical and custodial care of the child such that each parent has the child for more than 90 days out of the calendar year.

Split physical custody: When there is more than one child and each parent obtains primary physical or shared custody over at least one of the parties’ children.

What custody/visitation rights do parents in Virginia have before any court orders have been entered?

In the absence of a court order, both parents have equal rights to the physical custody of their minor children and to make decisions on behalf of their children. The parties could agree on how to handle custody and visitation prior to the court hearing and have their agreement entered as a consent order. Alternatively, either party could file a motion for pendente lite relief and ask the court to enter a temporary order for custody and visitation to remain in effect until the court makes a final determination.

What are some reasons I should have a will?

  • If you die intestate, or without leaving a will, the law may have to decide who will inherit your property and how much each person will inherit. For example, in Virginia under the laws of intestate succession, one-third of one’s property goes to a surviving spouse and two-thirds goes to surviving children.
  • Even if you are married and own everything in joint tenancy with your spouse, you may want to have a will in case you and your wife die together. A will allows you to control how and to whom your assets will pass to others upon your death.
  • Even if you have no property and have designated all your beneficiaries on your life insurance and tax deferred accounts, you may need a will because your beneficiaries may not outlive you.
  • You are a sole parent of a minor child or children. If you are a widow or widower you may wish to designate who will take care of your minor child and the property left for the child’s benefit. If you are divorced from the other parent of the child, you may not what him/her to hold your property for the benefit of your minor child.
  • You own real estate in a state outside the state in which you reside or claim as your domicile.
  • You have a family member whom you wish to disinherit or need to disinherit to preserve medical benefits.

Does a will avoid probate?

No. when you die, any property that is not held in joint tenancy with right of survivorship with another will be subject to probate whether or not you have a will. During probate proceedings, the court will supervise the distribution of property to those entitled to receive it in accordance with your will, or in accordance with the law of intestate succession in the absence of a will. Probate may require the periodic submission of property inventories and the payment of court costs and bond fees.

What is a trust?

A trust is a legal entity, somewhat like a corporation, that assumes ownership of real estate and money transferred into the name of the trust. Property owned by the trust upon the death of the person who created the trust (the grantor) passes to the beneficiaries named in the trust document. The transfer of this property is not subject to probate.

What is an Inter Vivos Trust

An inter vivos trust is one established during your lifetime as opposed upon your death. In an inter vivos trust, you usually designate yourself (or your spouse and yourself) as the initial trustee(s) and a trusted family member or friend (often the one you designate as an executor under your will) as a successor trustee. As in a will, you designate the beneficiaries who will receive your property following your death. Typically, an inter vivos trust is revocable.

What are some reasons to have an inter vivos trust?

Assuming you decide to have a will, you should consider establishing an inter vivos trust if one or more of the following situations apply to you:

  • You have property of substantial value and wish to avoid the expense and delay inherent in probate proceedings and having a court supervise the distribution of your property following your death.
  • Your property is not owned in joint tenancy with another. For example, you are unmarried, or you are divorced, or you have remarried and wish to preserved property you brought into the marriage for your children from an earlier marriage.
  • You own real estate in a state outside the state in which you reside or claim as your domicile.
  • You own a business.
  • You have no one you wish to name to administer your estate (or whom you trust) and wish to designate a corporate trustee (for example, a bank and trust company) to serve as your executor and trustee in handling the distribution of your property.
  • You have beneficiaries who are minors, immature, disabled, and/or elderly who are not able to manage financial assets, and you want to ensure that the financial assets passing to them will be properly managed and used for their welfare.
  • An inter vivos trust can accomplish other goals related to tax planning, asset preservation, and creditor protection.

How is an inter vivos trust funded?

Once an inter vivos trust is drafted and signed, to be effective, it must be funded by transferring the title of real estate, financial accounts, and other property into the name of the trust.