The Livesay & Myers, P.C. Blog
Desertion v. Separation in Virginia
Virginia Code § 20-91 provides for divorce on either fault-based grounds or no-fault grounds in Virginia. The grounds for divorce listed there include, among others, both (a) the fault-based ground of willful desertion or abandonment, after one year and (b) the no-fault ground of living separate and apart without any cohabitation and without interruption for one year. The separation period for a no-fault divorce is shortened to six months where the parties have entered into a separation agreement and have no minor children.
All of which leads to this common question: how does one live “separate and apart” to qualify for a no-fault divorce, without being found guilty of willful desertion or abandonment?
Virginia courts distinguish desertion from mere separation by looking at the specific behavior of the parties. Courts have consistently found that one party moving out of the marital bedroom … Read More »
You have been charged with possession of marijuana in Virginia—yet you never actually possessed the drug. How is that possible? The reason is simple: under Virginia law you may be guilty of marijuana possession if the prosecutor can prove beyond a reasonable doubt that you were either in actual or “constructive” possession of it.
Actual possession is when you are physically in possession of an object, or in this case, a narcotic. For instance, you could be holding it or it could be in your pant pocket. So, in other words, you are in actual possession of things that are on your person.
Constructive possession, on the other hand, is when the marijuana is not on your person, but is in a place under your control, and you know what and where it is. To show constructive possession, the government has to prove the … Read More »
Virginia law allows for divorce based on both fault-based and “no-fault” grounds. The three fault-based grounds for divorce in Virginia are adultery, cruelty and desertion. In deciding which ground to file on, it is wise to start by considering the pros and cons of filing for divorce based on a fault-based ground in Virginia.
Advantages to Filing for Divorce Based on Fault
Unlike a “no-fault” divorce, if you decide to file for divorce based on fault, there is no statutorily mandated waiting period for filing. Many individuals who want to get the ball rolling on their divorce may choose to proceed based on fault (assuming it is applicable in their case). This advantage to a fault-based divorce is especially important in those cases where one spouse needs immediate, temporary child support or spousal support during the pendency of the divorce, which can be obtained through … Read More »
You have made the difficult decision to separate from your spouse, but there are insufficient funds in the family budget to support two households. Perhaps it is unclear which party will permanently remain in the marital residence, and neither is willing to move out without having a financial agreement in place. For whatever reason, you find yourself separated from your spouse while living under the same roof. There are several issues to be aware of if you are contemplating living with your spouse during separation in Virginia.
Clients frequently ask whether time spent separated yet living under the same roof as their spouse counts toward the requisite separation period necessary for a no-fault divorce. In Virginia, spouses can obtain a no-fault divorce after six months of living separate and apart without any cohabitation and without interruption, if there are no minor … Read More »
Postnuptial Agreements in Virginia
Every year, it seems that more and more individuals are seeking prenuptial agreements. What was once a tool used only by the rich and famous has increasingly become a mainstay of domestic relations law. Statistically, prenuptial (“existing or occurring before marriage”) agreements, or “prenups,” are used more often by individuals who have been married before or are getting married for the first time later in life. They are often used to protect a separately-owned business or to contractually limit (or eliminate) a spousal support obligation to the other party. But what if you’re ten years into a marriage and want to start a business? Or you decide to change careers to a more lucrative field? Can you still get the advantages of a prenup after marriage?
The short answer is “yes.” The Virginia Premarital Agreement Act is part of … Read More »
If you and your spouse have decided to end your marriage, you may be contemplating negotiation, rather than litigation. Divorce can be mentally, physically and emotionally exhausting to you, your children and your extended family. The effects of divorce may be reduced if you and your spouse can negotiate a settlement, rather than going to trial and having the court decide. A negotiated divorce will require some give and take by both parties, and neither one of you will get all you want. If successful, a negotiated divorce will result in a final agreement that both of you are willing to accept.
There are several possible options for negotiating a settlement in your divorce:
A negotiated divorce can be achieved via direct communication between the attorneys who represent the respective spouses. If there are only a few contested issues, the attorneys should … Read More »
One question that often arises in Virginia custody cases is whether a child can simply tell the judge that he or she wants to live with one parent or the other. The answer to that question is: maybe.
Virginia Code § 20-124.3 lists the factors that courts must consider in determining child custody and visitation in Virginia. One factor listed is “the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.”
The Code does not provide a set minimum age where a child is deemed able to express their preference. Instead, courts are left to decide on a case-by-case basis whether to consider the child’s preference, based on the individual child’s age and maturity level.
And, there is no precise age at which a child’s preference is controlling. § 20-124.3 lists a child’s preference as … Read More »
Weighing the Legal Benefits of Marriage vs. Long-Term Cohabitation in Virginia
With same-sex marriage now legal in Virginia, it would seem that marriage would be on the rise. However, a Parents magazine article reports a trend among millennial couples to forego marriage for a number of practical reasons, including financial, personal preference, and the fear of divorce.
As a family law attorney, this trend concerns me. The laws of most states and the federal government allow certain protections and benefits to married couples. Those things that the LGBT community fought so hard for are being dismissed by many millennials as “unnecessary.” The Parents article does not warn of the legal risks that accompany maintaining long-term cohabitation relationships without entering into marriage, and it is important to consider all the risks and benefits of marriage before you make the decision to forego getting married.
One of the … Read More »
In many divorce cases, the most valuable asset to be divided is a pension. Pensions, or “defined benefit plans,” pay retirees a specified recurring benefit upon retirement that the retiree receives for life. Examples of defined benefit plans are the Federal Employees Retirement System (FERS), Virginia Retirement System (VRS), and military retirement benefits. Two main characteristics of pensions make them so valuable: first, the payments received can add up to hundreds of thousands of dollars throughout the life of the retiree; and second, the pension pays its benefits in regular (usually monthly) intervals, creating a guaranteed stream of income for the recipient.
Another feature of defined benefit plans is that they only provide the benefit to the retiree—when the retiree passes away, all benefits cease. This is generally of no concern to a retiree in a divorce proceeding. But a former spouse could … Read More »
Divorce and child custody proceedings are often contentious, time consuming and expensive. It is understandable that parties to litigated divorce or child support cases would never want to see a courtroom again, or even think about having to reopen old wounds. The reality is, however, that parties who want to adjust child support need to follow certain steps and procedures, because the consequences for not doing so can be severe.
Pursuant to Virginia Code § 20-108, Virginia courts have the authority to revise and alter prior orders concerning the custody, care and maintenance of a child or children and make new orders, “as the circumstances of the parents and benefit of the children may require.” The amount of child support ordered by a judge may be increased or decreased at any time based on a “material change of circumstances.”
Parties seeking a modification of … Read More »