The Livesay & Myers, P.C. Blog
On November 5, 2015 the U.S. Department of State (DOS) implemented a policy which required consular officers to revoke the nonimmigrant visas of foreign nationals convicted of, or merely arrested for, driving under the influence, driving while intoxicated, or any similar crimes that occurred within the last five years as stated in 9 FAM 403.11-3(A). Once the DOS is aware of the alcohol-related incident, the consulate is suppose to contact the foreign national and provide notification of the revocation. The revocation occurs regardless of whether the foreign national can be reached for notification. In cases where the foreign national cannot be reached for notification, they may only become aware of the revocation when they depart the U.S. and try to re-enter with the same visa.
In September of 2016 DOS issued updated guidance on how to implement the new policy, which … Read More »
In Virginia, a grandparent, relative, or other interested party may seek and receive a court order granting them legal and physical custody of a child in their care. Such an order would give the custodian a feeling of security that the child cannot be taken from them unless a parent seeks to modify the custody order, in which case the custodian would presumably have an opportunity to object and have their day in court. However, under the Virginia Adoption Statute, that may well be a false sense of security. Under that act, parents who have lost custody nevertheless maintain their residual parental rights, including the right to consent to an adoption. The end result, as I will explain in detail below, is that third-party custodians with legal custody may actually lose the children in their care to an adoption without any notice or … Read More »
It is very common these days for both parents to work outside of the home, whether on a part-time or full-time basis. For many parents, this requires a juggling of responsibilities and it also requires making sure that children are supervised and looked after appropriately. It is difficult enough for many parents to find the appropriate care for their children when two parents are living under the same roof; however, the situation becomes even more complicated when parties are separated or divorced.
While Virginia law does not provide a specific age at which you can leave your child at home alone, many Virginia counties set their own guidelines for supervision of minor children. These guidelines are typically drafted and developed by social workers and other community members. These county-specific guidelines are not laws; however, not following them can have legal implications.
Virginia courts … Read More »
Many family law clients ask the same question during their initial consultation: “which court should I file in?” In Virginia, both the juvenile and domestic relations district court (“J&DR court”) and the circuit court handle family law cases. The J&DR court has the power to hear matters concerning custody, visitation, child support, and spousal support. The circuit court can hear all of the same issues, in addition to divorce and equitable distribution.
Unmarried couples with children must file in the J&DR court for custody, visitation, and child support to be determined. For couples who are divorcing, there are factual, procedural, and strategic considerations that come into play when determining which court to start in. Generally speaking, if one of the parties has grounds for a divorce, it may make more sense to begin the matter in circuit court, but this is … Read More »
A new law goes into effect in Virginia on July 1, 2017, giving courts the authority to order a party paying spousal support to maintain an existing life insurance policy for the benefit of the payee spouse. This change to Virginia family law will come from a new statutory provision, Va. Code § 20-107.1:1.
The existing life insurance policies must be on the payor spouse’s life, not the payee spouse’s life. Additionally, the policy must have been issued during the marriage, through the insured’s employment, or be within effective control of the insured provided that the insured party has the right to designate a beneficiary during the marriage and the payee is a party with an insurable interest.
This new Virginia code provision effectively overrules the holding under Lapidus v. Lapidus, 226 Va. 575 (1984). In Lapidus, the Supreme Court held that nothing … Read More »
Back in July of 2015, the Virginia General Assembly passed a law that aimed to save the lives of people suffering from overdoses. This safe reporting law (Virginia Code § 18.2-251.03) provides for an affirmative defense to prosecution of unlawful possession of alcohol, possession of a controlled substance, possession of marijuana, drunk in public, or possession of controlled paraphernalia. It does not, however, provide an affirmative defense to other crimes such as intent to distribute.
While the law is indeed a constructive step towards lowering the rate of overdoses in Virginia, it has generated some confusion about whom it actually covers. Is the individual overdosing protected? Or is it the person making the call? Or is it both? A recent Virginia Court of Appeals case, Broadous v. Commonwealth, interpreted the overdose safe harbor provision provided in § 18.2-251.03 and may finally … Read More »
In Virginia, there are two types of courts that handle family law cases: juvenile and domestic relations district courts (“J&DR courts”) and circuit courts. Circuit courts have the authority to hear divorce cases and all matters stemming from divorce, including child custody, visitation and support, spousal support and equitable distribution. J&DR courts can hear cases of custody, visitation, child support and spousal support, but have no authority over divorce matters. J&DR courts thus hear many cases involving unmarried individuals who share children—but are not off limits to married persons by any means.
In some instances, married individuals may file petitions for custody, visitation or support in J&DR court, even if they intend to ultimately seek a divorce in circuit court. In many cases, neither individual of the married couple has grounds to file for divorce in Virginia, but still needs a determination … Read More »
Probate is the legal process that includes proving the validity of a decedent’s will, identifying the decedent’s assets and transferring those assets to the decedent’s heirs, beneficiaries and/or creditors. “Probate assets” are assets that pass to your heirs or beneficiaries pursuant to your will. “Non-probate assets” are assets that pass to your heirs or beneficiaries by some means outside of your will, thereby avoiding the probate process that involves qualification of a fiduciary, costs, and delay, as well as other aspects of probating a will.
Some examples of non-probate assets in Virginia are:
Assets with a Named Beneficiary. Life insurance contracts payable to a designated beneficiary, and retirement benefits payable to a designated beneficiary, such as 401(k)s and IRAs, pass directly to the named beneficiary at the death of the policy or account owner, rather than by a will.
Payable on Death (POD) … Read More »
If you do not know the whereabouts of your spouse, it is still possible to proceed with a divorce. Because each party in a divorce must have notice of any claims asserted against them, an absent spouse becomes an issue for purposes of service, which is the process by which parties to a case are provided with notice of the legal proceedings. In these cases, notice can be provided by using “service by publication.” Service by publication is the method of publishing an order, which acts as sufficient notice of the divorce proceedings to the spouse whose location cannot be found.
There are several potential issues with service by publication that you should be aware of if you intend to use this method in your divorce case.
First, service by publication is only to be used when one spouse truly has no … Read More »
For purposes of calculating child support, the Virginia Child Support Guidelines take into account each parent’s gross income. Virginia Code § 20-108.2(C) defines “gross income” as “income from all sources,” including but not limited to:
income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.
§ 20-108.2(C) further provides that “[g]ross income shall be subject to deduction of reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business.”
Pursuant to this code section, Virginia courts have consistently deducted expenses associated with rental properties from the rental income on those properties in calculating gross income. Some of the expenses commonly deducted include: mortgage payments, taxes, insurance, … Read More »