The Livesay & Myers, P.C. Blog


Advance Medical Directives in Virginia

Posted on April 24th, 2017, by Brianna Salerno in Estate Planning. No Comments

An advance medical directive is a legal document that allows a person to state what they want for their own medical care if they are unable to make decisions for themselves due to incapacity.
In Virginia, advance medical directives are authorized under the Virginia Health Care Decisions Act.

An Advance Medical Directive may be used to:

specify what the person executing the directive (known as the declarant) does or does not authorize with regard to his or her healthcare;
appoint an agent or a third party to make healthcare decisions for the declarant; and
specify anatomical gifts of a specific part or parts of the declarant’s body, or the declarant’s entire body, for organ and tissue donation.

Executing an Advance Medical Directive

Per Virginia Code § 54.1-2983, in order to be a legally binding document an advance medical direct must be signed by the declarant in the … Read More »


Sole Custody of Children in Virginia

Posted on April 13th, 2017, by Amanda Stone Swart in Custody, Family Law. No Comments

People undergoing the process of separation and divorce face many major, life-changing events all at one time. First and foremost in the minds of most parents in this situation is the issue of child custody. The initial question on the minds of many is: “Can I get sole custody of my kids?” While many parents are inclined to seek sole custody of their kids, very few are familiar with what the term “sole custody” actually means, and the difficulty that comes with trying to win sole custody of children in Virginia. 

In Virginia, there are two types of custody: legal and physical. Legal custody is the right to make decisions for your children, including major decisions such as healthcare, education, and religious upbringing. Physical custody is where the children live. Visitation is a subset of physical custody, and can be generally … Read More »


Unenforceable Custody and Support Provisions in Separation Agreements

Posted on March 28th, 2017, by Ariel Baniowski in Custody, Divorce, Family Law. No Comments

It is not uncommon for people undergoing divorce to approach their attorneys with a laundry list of terms regarding their children that they would like included in their separation agreement, or for people who already divorced to approach attorneys with child-related terms of an existing separation agreement which they need enforced. What many people are surprised to hear is that some of those terms which they would like included, or some of the terms that may already be in their agreement, are actually unenforceable under Virginia law.

The first thing to understand in this area is that provisions in agreements regarding child custody, visitation and child support are always modifiable based upon a material change in circumstances. Always! So, any provision in an agreement which indefinitely prohibits the modification of custody, visitation or child support would be unenforceable.

Secondly, there are plenty of … Read More »


Maintaining or Reinstating F-1 Student Status

Posted on March 23rd, 2017, by Karen Williams in Immigration Law. No Comments

If you are an international student enrolled in a full-time degree or academic program at a U.S. educational institution, then you are an F-1 student. As an F-1 student, you are admitted to the U.S. for “duration of status.” This means you are allowed to stay in the U.S. as long as you maintain your status by satisfying the requirements and regulations instituted by U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Custom Enforcement (ICE). The following is a guide to maintaining your F-1 student status or applying for reinstatement if you have fallen out of status:

Maintaining F-1 Status

You can maintain your F-1 student status by following these rules:

Maintain a full-time course load. What constitutes a full-time course load might differ depending on the type of program in which you have enrolled. You should check your program to ensure … Read More »


Leaving Real Estate in Your Will in Virginia

Posted on March 21st, 2017, by Carolyn Eaton in Divorce, Estate Planning, Family Law. No Comments

How you hold title to your real estate (real property) may have an impact on whether or not it can be left to someone in your will. When having a will drafted and considering who you want your real property to pass to upon your death, it is important to know how title to your real property is held. It is also important that you provide your attorney with the title or deed of trust for each piece of real property that you own so that it can be properly addressed in your will.

Title refers to legal ownership and the right to use property. There are several forms of ownership of real property in Virginia, including:

Sole ownership. Title to real property held in the name of one person is sole ownership. The person who is the sole owner of the property … Read More »


Marital Waste in Virginia Equitable Distribution Cases

Posted on March 16th, 2017, by Caitlin Higgins in Divorce, Family Law. No Comments

In Virginia, a spouse who spends or disposes of marital property for an improper purpose (a) anticipating a separation or divorce or (b) after the final separation of the parties may have committed “marital waste.” The court has the authority to consider such behavior in making an equitable distribution award.

Marital waste (or “dissipation of assets”) typically occurs when one party transfers funds out of a marital account or otherwise misuses marital funds after the marriage begins deteriorating. The aggrieved spouse must only show that the funds were withdrawn or used by the other spouse. The burden of proof then shifts to the alleged wrongdoer to prove by a preponderance of the evidence that the funds were spent on a proper purpose. It should be noted that Virginia courts have held that spending money on living expenses post-separation does not usually constitute … Read More »


Power of Attorney for Care and Custody of Children in Virginia

Posted on March 8th, 2017, by Sarah Collins in Custody, Estate Planning. No Comments

A written agreement between parents or a court order regarding custody and visitation are the most common methods by which custody and visitation are determined between parents who are no longer together. However, in the event that one parent will be absent from the country, a power of attorney may be an appropriate means of giving someone who is not a custodian or guardian of your children the ability to act on your behalf during their absence.

Virginia law provides for children’s enrollment in school when living with relatives who are not their parents, by use of special “kinship care arrangements.”

Virginia also allows military families to have a power of attorney regarding the care of minor children, by recognizing the military power of attorney instrument provided in 10 U.S.C. § 1044(b). See Virginia Code § 64.2-1604 and the Interstate Compact on … Read More »


Adultery As a Crime: Impact on Virginia Divorce Cases

Posted on March 2nd, 2017, by Jonathan McHugh in Divorce. No Comments

So, you think, or you know, that your spouse is cheating on you. As devastating as this discovery can be, many people are just as devastated to find out that Virginia law can, and often does, protect the adulterer.

In Virginia, adultery is defined as the act of sexual intercourse by a married person with any person who is not their spouse. It is a ground for divorce under Virginia Code § 20-91. It is also illegal, a Class 4 misdemeanor according to Virginia Code § 18.2-365. While adultery as a crime is rarely, if ever, prosecuted, the fact that adultery is still technically illegal in Virginia has a significant impact on many divorce cases.

For a court to grant a divorce on the ground of adultery, Virginia law requires proof by “clear and convincing” evidence, a higher standard of proof than other grounds … Read More »


Major Changes to Federal Law on Dividing Military Retired Pay

Posted on February 27th, 2017, by Benjamin Carafiol in Divorce, Family Law, Military Divorce. No Comments

The National Defense Authorization Act (NDAA) for 2017, signed into law in December 2016, drastically changes the way military retired pay can be divided in divorce cases. The new NDAA made major changes to the Uniformed Services Former Spouse Protection Act (USFSPA), which is the federal law enacted in 1982 that allowed states to divide military retired pay as marital property in divorce.

The original USFSPA did not provide for any particular division of a servicemember’s military retired pay. Rather, each state was able to develop methods of dividing military retired pay based on their existing state laws concerning division of property in divorce.

Virginia, as an equitable distribution state, awarded a former spouse a portion of the “marital share” of the servicemember’s retired pay. The marital share was a fraction of the total retired pay, with the numerator being the creditable service … Read More »


Who Gets the Engagement Ring After a Breakup in Virginia?

Posted on February 13th, 2017, by Laila Raheen in Family Law. No Comments

For years, Virginia circuit courts were split on the question of who gets the engagement ring after a breakup in Virginia. Some courts held that the engagement ring could not be recovered because such claims are barred under Virginia Code § 8.01-220. Known as the “heart balm” statute, that code section bars civil actions for breach of promise to marry (along with civil actions for alienation of affection, criminal conversation and seduction). However, other courts held that the engagement ring could be recovered because the party seeking to recover the ring is not seeking damages due to a broken promise to marry, but rather is asking for the return of a conditional gift, the condition being the marriage. Therefore, these courts held, when the engagement breaks off, the condition is not satisfied and thus the gift (the ring) should be returned.

The Virginia Supreme … Read More »




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