Any person taken to court has certain rights that must be respected. The Fifth and Fourteenth Amendments of the U.S. Constitution require that neither the federal government nor individual states deprive anyone of life, liberty or property without “due process of law.” At its most fundamental level, due process requires the defendant be served with notice that a case has been filed against them, and given the opportunity to appear before the court to defend themselves.
The increasing mobility of individuals in our society has added complexity to the issues of due process. Pioneers took six months to travel across the country on the Oregon Trail in the mid-1800s, risking disease and death along the way. Today, someone can load up their belongings in a U-Haul truck and relocate across the entire country in about a week. This extreme freedom and ease … Read More »
The juvenile and domestic relations district courts (“J&DR courts”) in the Commonwealth of Virginia have jurisdiction over cases to determine child custody and visitation. While this jurisdiction is “concurrent” with the circuit courts (meaning either court can hear such a case), a vast majority of custody disputes begin—and end—in J&DR courts. Parties to custody cases before a J&DR court do retain the automatic right to appeal any decision to the circuit court for a brand new trial, meaning that parents could potentially have to go through a complete custody trial not once, but twice, before being able to move on with their lives.
This reason is one among many that could lead parties to resolve a custody battle through a negotiated agreement. But the last thing a parent wants to face is the other parent backing out of an agreed-upon custody arrangement, … Read More »
Last year, Virginia expanded the relief available to victims of domestic violence obtaining a final protective order. The typical remedies a victim of family abuse may seek in Virginia are found in Virginia Code Section 16.1-279.1, and include prohibiting acts of future family abuse, prohibiting some or all contact between the victim and the offender, and granting possession of the residence occupied by the parties to the petitioning party. The option of an abuse victim to terminate a rental agreement early, however, is not contained in this Section. It is instead located in Virginia Code Chapter 55, which deals with property and conveyances.
Virginia Code Sections 55-225.16 and 55-248.21:2 both provide that any tenant who has been a victim of (a) family abuse, (b) sexual abuse, or (c) other criminal sexual assault may terminate their rental agreement under certain circumstances. Those … Read More »
The Virginia General Assembly recently passed a bill to update Virginia’s child support guidelines. The bill, HB 933, enjoyed significant support in the legislature—passing the House of Delegates on a vote of 85-10 and the Senate on a 38-0 vote. If the Governor now signs the bill, it will go into law effective July 1, 2014.
HB 933 proposes three significant changes to Virginia Code Section 20-108.2:
Updated Child Support Guidelines. Virginia initially adopted the child support guidelines set forth in Virginia Code Section 20-108.2 in 1988, and while it has made minor changes to portions of this law it has not updated the actual guidelines in the past 26 years. The new law would not simply increase child support amounts across the board; rather, the specific details of an individual’s case could result in higher or lower child support amounts under the revised guidelines.
Removes Set … Read More »
Modification to Virginia Code Would Allow Consolidated Petitions
The issues of child custody and visitation are about as connected as any two issues can be. If you have any experience with Virginia custody cases, however, you know that it can feel like each part of your case has its own case number. And that’s because, by and large, it does! The Juvenile and Domestic Relations District Courts here in Virginia will assign one identification number for a child custody case and give a second, different number to a visitation case… for the same child. If paternity is an issue that becomes a third case number. And if there are multiple children, well, each child gets his or her own set of unique case numbers for his or her custody matter. Parents in a custody dispute can find themselves with more than … Read More »
As we have previously discussed here at the Livesay Myers Blog, the Servicemembers Civil Relief Act (SCRA) can have a significant impact in a family law case where one party is a member of the Armed Forces. The SCRA provides paths for servicemembers on active duty to delay litigation in which they are involved. Key points that servicemembers often ignore with respect to the SCRA are (a) that it only provides a temporary delay to their litigation and (b) that the servicemember is required to actively seek relief under the SCRA.
These points were discussed in a recent Marine Corps Times article regarding a soldier who appealed a child support court order to the Alaska Supreme Court. The soldier argued in his appeal that the SCRA protected him from any negative consequences of civil litigation as long as he is on active … Read More »
In a case recently reviewed by the Virginia Court of Appeals, a wife sought appeal of her divorce case because the judge refused to grant a fault-based divorce on the ground of pre-marital cruelty. The trial court in her case instead entered the divorce based on the parties’ living separately, and the Court of Appeals decided there was no error in so doing. In Virginia, if more than one ground for divorce exists, the trial judge has discretion to enter the divorce on any applicable ground. The Court of Appeals, relying on this rule, held that even if the wife had proved pre-marital cruelty, the trial judge acted properly in choosing to grant the divorce on the no-fault ground of the parties’ separation.
In the course of reaching its decision, the Court of Appeals “assum[ed] without deciding” that pre-marital cruelty is a valid ground for divorce in … Read More »
A key step in every contested divorce case in Virginia is the pendente lite hearing, where the court puts in place a number of ground rules to govern the parties until the divorce is final. “Pendente lite” is a Latin term which essentially means “pending the litigation” or in this context, “pending the final divorce.” In many cases these pendente lite ground rules include an order for temporary child and spousal support.
Each county has their own set of procedures regarding these hearings. For example, pendente lite hearings in Fairfax follow a very rigid structure, including a strictly-enforced 30 minute time limit. Stafford County also follows a schedule with most all hearings being 30 minutes, but Stafford is unique in its near universal drive to have parties attempt mediation before their temporary hearings.
The Virginia Code authorizes courts to refer any contested civil matter (such as a divorce … Read More »
The Livesay & Myers Blog, as the rest of the nation, has closely followed the recent Supreme Court rulings on same-sex marriage. In a previous post, my colleague Ariel Baniowski discussed how Virginia law is impacted by the Supreme Court’s rulings. While these decisions do not modify Virginia marriage laws, the Supreme Court has radically altered the landscape of federal law, in a way that might affect thousands of Virginians.
In the case of U.S. v. Windsor, the Supreme Court struck down part of the Defense of Marriage Act (“DOMA”), ruling that the federal government can no longer restrict federal marriage benefits to solely opposite-sex couples. Virginia of course– especially Northern Virginia– is home to a large number of federal employees. During the recent “sequester” showdown, it was reported that some 322,198 federal employees and retirees call the Commonwealth their home. Should any of … Read More »
Many government employees have finally received written notice of furloughs – temporary, unpaid leave – set to begin within the next several weeks. These furloughs are one portion of “the Sequester,” the across-the-board budget cuts that began March 1, 2013. Federal employees are facing up to one day in mandatory unpaid leave per week and the resulting loss of a fifth of their monthly income. But how does a furlough affect child support for Virginia residents?
Virginia’s child support laws provide a presumed correct amount of guideline child support based on each parent’s gross income. As circumstances change, courts are authorized to review and modify a child support award if and when there has been a material change in circumstances that justifies making a change. In a vacuum, a 20% pay cut is probably a big enough change for a court … Read More »