The Livesay & Myers, P.C. Blog

Which Court Should You File In?

Posted on June 26th, 2017, by Sarah Collins in Custody, Divorce, Family Law. No Comments

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 »

Change in Virginia Family Law Regarding Life Insurance

Posted on June 20th, 2017, by Brianna Salerno in Family Law. No Comments

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 »

The Safe Reporting Law for Overdoses in Virginia

Posted on June 12th, 2017, by Fernando Villarroel in Criminal Defense. No Comments

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 »

Divesting Jurisdiction in Virginia Family Law Cases

Posted on May 24th, 2017, by Jenna Maresco in Custody, Family Law. No Comments

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 »

Non-Probate Assets in Virginia

Posted on May 18th, 2017, by Carolyn Eaton in Uncategorized. No Comments

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 »

Service by Publication in Virginia Divorce Cases

Posted on May 15th, 2017, by Caitlin Higgins in Divorce, Family Law. No Comments

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 »

Rental Income and Child Support in Virginia

Posted on May 8th, 2017, by Laila Raheen in Family Law. No Comments

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 »

Nonimmigrant Intent and the Doctrine of Dual Intent

Posted on May 1st, 2017, by Karen Williams in Immigration Law. No Comments

Generally, a foreign national applying for a nonimmigrant visa to come to the U.S. must demonstrate that they have “nonimmigrant intent,” meaning the intent to return to their home country at the end of their authorized stay. The burden is on the applicant to demonstrate to the interviewing officer at the consulate or port of entry that they have sufficient ties to their home country that they do not intend to abandon and that will compel them to leave the U.S. at the conclusion of their authorized stay.

The interviewing officer has a great deal of discretion in deciding whether the foreign national has offered sufficient proof of their nonimmigrant intent. It is beneficial for the applicant to have supporting documentation of ongoing ties to their home country, which may include: proof of continuing employment, property ownership, financial assets and family ties. … Read More »

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 »

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