The Livesay & Myers, P.C. Blog


Residency Requirements For Virginia Divorce

Posted on October 15th, 2012, by James Livesay in Divorce, Family Law. Comments Off on Residency Requirements For Virginia Divorce

You and your spouse were married in Hawaii. You resided as a married couple in Virginia for many years. Discord arose and now you have been separated for over a year. One month ago, your soon-to-be ex moved to sunny Southern California, while you remained in Virginia. You are ready to move on and want to begin divorce proceedings, where do you file?

Determining where to file your divorce is a question of jurisdiction. A court must have jurisdiction over your case before it can grant your divorce, and each state has specific requirements for jurisdiction. In order to file in Virginia, at least one of the parties must meet the residency requirements of Virginia Code Section 20-97. That section states in part that “no suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties … Read More »


Prosecutorial Discretion For Same-Sex Couples In Immigration Cases

Posted on October 11th, 2012, by Livesay & Myers, P.C. in Immigration Law. Comments Off on Prosecutorial Discretion For Same-Sex Couples In Immigration Cases

While many states recognize same-sex marriage and partnerships, these relationships have not been considered in the context of U.S. immigration laws. The Defense of Marriage Act (DOMA), passed in 1996, has prevented any Federal recognition of same-sex marriages for immigration purposes. DOMA defines marriage as an institution specifically between a man and a woman. This prevents many immigrants from obtaining benefits through their same-sex spouses which would otherwise be available if they were married to members of the opposite sex. For years, many have fought to prevent same-sex marriage families from being separated due to the immigration system’s failure to recognize their relationships. A recent announcement by U.S. Immigration and Customs Enforcement (ICE) regarding prosecutorial discretion has given those people reason to celebrate.

By a written memorandum on June 17, 2011, ICE Director John Morton set forth the ICE policy on the exercise of … Read More »


Redefining Cohabitation In Virginia

Posted on October 3rd, 2012, by Livesay & Myers, P.C. in Divorce, Family Law. 2 comments

The Virginia Court of Appeals has taken a major step in redefining cohabitation “in a relationship analogous to a marriage” under Virginia Code 20-109(A).

Virginia Code 20-109(A) provides for termination of spousal support “upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more.” That Code provision directs courts to terminate spousal support “unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable.”

Clients frequently ask what “cohabiting with another person in a relationship analogous to a marriage” means, and how to either avoid such a situation or prove that one exists. Virginia Code 20-109(A) does not provide a definition, so attorneys are left answering … Read More »


Understanding What Your Family Lawyer Can – And Can’t – Do For You

Posted on October 1st, 2012, by Matthew Smith in Custody, Divorce, Family Law. Comments Off on Understanding What Your Family Lawyer Can – And Can’t – Do For You

When potential clients come in to meet with me, they’re often experiencing a crisis in their lives unlike any other. Many people have expectations about the legal system and their lawyer’s role in healing the wounds of their divorce or custody dispute.

So what can the divorce or custody process do for you and what can’t it do? As you get started, where should your focus be?

Let’s begin with what the judicial process generally can’t do. Unfortunately, if you have been suffering through a difficult time, the legal process will never make you whole again. The judge won’t declare your husband to be a bad person or force a public apology from him. Typically, you will not get the opportunity to convince the judge and your wife’s attorney that you are in a morally superior position. We can’t force your husband … Read More »


Extreme Hardship Waivers In Immigration Cases

Posted on September 27th, 2012, by Jennifer Varughese in Immigration Law. 59 comments

Green cards obtained through marriage to a U.S. citizen are a popular way to achieve permanent residency status in the United States. But what happens when the non-citizen spouse in the relationship did not enter the country lawfully? Is there any hope for star-crossed lovers in this situation?

Rumors abound on what, exactly, can and cannot be done for a non-citizen spouse. Any spouse who wants to obtain a green card and has been unlawfully present in the U.S. for over 6 months but less than 1 year is subject to a 3-year bar from the U.S. before they can return with proper documentation. For those who spent more than 1 year out of status, the punishment is an even steeper 10-year bar.

Let’s look at a simple example. Tony, a native of Guatemala, enters the U.S. in 2003 without a visa. … Read More »


Benefits Of Former Military Spouses Part Three: Continued Health Care Benefit Program

Posted on September 25th, 2012, by Benjamin Carafiol in Family Law, Military Divorce. Comments Off on Benefits Of Former Military Spouses Part Three: Continued Health Care Benefit Program

In Parts One and Two of this series, we looked at the requirements a former spouse must meet to retain medical coverage through the Tricare program. A 20/20/20 spouse would be eligible for lifetime coverage under Tricare (in addition to other benefits), while a 20/20/15 spouse would be eligible for transitional Tricare coverage for one year. Former spouses who do not qualify as at least 20/20/15 spouses are not eligible for Tricare coverage at all, but they are not left without options.

The Continued Health Care Benefit Program (CHCBP), enacted in 10 U.S.C. 1078a, is available for former spouses who cannot qualify for Tricare coverage under the 20/20/20 or 20/20/15 Rules. The CHCBP offers a COBRA-style program that allows any former spouses who were covered under Tricare on the day before entry of a final divorce decree to pay for continued medical … Read More »


Admissibility Of Parent Mental Health Records In Child Custody Cases

Posted on September 24th, 2012, by James Livesay in Custody, Family Law. Comments Off on Admissibility Of Parent Mental Health Records In Child Custody Cases

There is an ongoing debate in Virginia as to whether a parent’s mental health records should be admissible in custody and visitation cases. Prior to July 2008, Virginia Code Section 20-124.3:1 specifically provided that the mental health care records concerning a parent in a custody and visitation case are confidential. In 2008, that provision was repealed, and we are now in a period in which a parent will routinely allege that the other parent is practically insane and therefore an unfit parent, and will attempt to prove it by the introduction of what were once confidential medical records.

The question of the admissibility of a parent’s mental health care records features a tug-of-war between a person’s right to confidentiality and the court’s duty to act in the best interest of the child. The question is complicated by Virginia Code Section 8.01-399, which acknowledges that … Read More »


Benefits Of Former Military Spouses Part Two: The “20/20/15” Former Spouse

Posted on September 17th, 2012, by Benjamin Carafiol in Family Law, Military Divorce. Comments Off on Benefits Of Former Military Spouses Part Two: The “20/20/15” Former Spouse

In Part One of this series, we looked at the 20/20/20 Rule and the requirements a former spouse must meet to retain full military benefits and privileges upon divorce from a servicemember. In the event a former spouse cannot qualify under the 20/20/20 Rule, he or she may still be eligible to retain a portion of their military benefits as they transition from being a military spouse to a former spouse.

To qualify for transitional military benefits, a former spouse must satisfy the requirements of 10 U.S.C. § 1072(2)(G), more commonly referred to as the “20/20/15 Rule.” The 20/20/15 rule requires the former spouse to show three things: first, that the servicemember put in at least 20 years of creditable service; second, that the parties’ marriage lasted at least 20 years; and third, that the period of the marriage overlapped the period … Read More »


Asylum in the United States

Posted on September 13th, 2012, by Livesay & Myers, P.C. in Immigration Law. Comments Off on Asylum in the United States

“Give me your tired, your poor, your huddled masses yearning to breathe free… .” These words rest at the bottom of the Statute of Liberty to welcome those seeking opportunities and freedom. This sonnet speaks of a country founded by immigrants who sought freedoms they were unable to find in their home countries. Two hundred years later, this country which once had an open door policy, can now be harder to get into than the latest celebrity chef’s restaurant.

Recent court decisions have made it more difficult for those seeking a safe harbor in the United States, referred to as asylum relief. Asylum relief represents the idea that an immigrant can come to our country to pursue a life free from the persecution for their religion, race, or views which they are suffering in their home country. Many people come to … Read More »


Benefits Of Former Military Spouses Part One: The “20/20/20” Former Spouse

Posted on September 12th, 2012, by Benjamin Carafiol in Family Law, Military Divorce. Comments Off on Benefits Of Former Military Spouses Part One: The “20/20/20” Former Spouse

Most spouses of active duty servicemembers contribute greatly to the marriage. They stay behind and take care of the children when the Marine, Sailor, Airman, Soldier or Coast Guardsman is deployed. They support the member through advancement in rank. They uproot their lives every few years as the family moves from duty station to duty station.

The select few members that make a career out of their service are rewarded with monthly retired pay for the rest of their lives and additional benefits as retired servicemembers. Should the marriage continue, the spouse (and family) will share in those benefits. If the marriage ends, however, what – if anything – will the member’s former spouse receive? This is the first in a series of posts that will take a closer look at the benefits available to former spouses of servicemembers.

Some former spouses will be … Read More »




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