The Livesay & Myers, P.C. Blog
Parties facing a divorce or other family law litigation in Virginia often ask the question: would it help their case to record telephone conversations with the opposing party? The answer to this question may surprise you.
The Virginia Code sets out a surprising barrier for the use of recorded telephone conversations. Virginia Code Section 8.01-420.2 sets a general bar to the admissibility of recorded phone calls in civil court proceedings, unless all parties are aware that the conversation is being recorded. Unlike voicemails and recorded physical interactions, a telephone conversation would provide the opportunity to record without all parties’ awareness that the recording was being made. In a voicemail, the party intends that the message will be recorded, and pulling out your phone and placing it on the table is a tipoff that you may be recording an in-person interaction.
For telephone conversations, however, Section 8.01-420.2 … Read More »
Many times when it becomes obvious that a marriage is heading towards failure, the question arises whether it would be best to seek an annulment or a divorce. To answer that question, one must first understand how annulment differs from divorce, and the different remedies a court may award upon a divorce vs. upon an annulment.
Many people confuse the legal annulment with a religious annulment. A legal annulment is a determination by the court that the marriage never existed. It can only be granted in a limited number of circumstances that are very rare.
A very small number of marriages may be annulled because they were void ab initio—meaning they were never valid marriages. Those marriages include bigamous and polygamous marriages, incestuous marriages, and underage marriages. See Virginia Code Section 20-38.1. These “void” marriages are deemed to have never legally existed, … Read More »
Due to hard economic times, more and more parties are considering filing for bankruptcy. Even if you have not contemplated filing yourself, if you are facing the dissolution of your marriage you may find that your spouse has filed. Here are three things to know if you find yourself facing a separation or divorce in Virginia where one spouse has filed for bankruptcy:
Joint Debts. One of the most frequently asked questions when one party files for bankruptcy, either Chapter 7 or Chapter 13, is whether or not the non-filing spouse will be responsible for the discharged debts of the spouse who filed for bankruptcy. The answer is: it depends on how the debts are held. If a discharged debt is one that the filing spouse solely incurred and held solely in their own name, then the non-filing spouse will not be responsible for such debt. … Read More »
Immigration law remains a hotbed of legal and political activity in the United States. As we enter Spring 2016, here are several important immigration law updates:
Update on President Obama’s Executive Action, DAPA
In what will surely be one of the most anticipated decisions in 2016, the U.S. Supreme Court granted certiorari to United States v. Texas, which is the case involving President Obama’s executive action known as Deferred Action for Parents of Americans (DAPA). As detailed on this blog, DAPA is the closest thing to a form of immigration amnesty in the U.S. since the LIFE Act [245(i)] ended in April 2001. After President Obama announced DAPA, twenty-six states formally challenged the executive action, and the Fifth Circuit Court of Appeals issued an injunction to block DAPA implementation. Oral arguments in United States v. Texas are expected to be held in April 2016 with … Read More »
A child support order has been established obligating one parent, called the obligor, to pay child support for the benefit of the child. Time has passed and the obligor has not paid the child support, has not paid it consistently or has only paid a portion of the ordered amount. What next?
Unpaid child support, called an “arrearage” or “back child support,” becomes a judgement by operation of law, and cannot be set aside, changed or discharged in bankruptcy. If the obligor is not paying the ordered amount of child support, a Motion to Show Cause can be filed that requires the obligor to appear in court for a hearing to explain to the judge why he or she should not be held in contempt of court for failing to pay as ordered. Contempt of court for failure to pay can … Read More »
It is not uncommon for parents facing a custody and visitation dispute to enter it with preconceived notions of what the court will and should consider in deciding their case. Upon sitting down with a family lawyer for their initial consultation, these parents usually start off by listing the facts and circumstances they believe to be most important to the custody or visitation issues involved. Although many of the facts these parents think are important will affect the court’s determination, many others will actually have less of an impact in their case than they might hope for.
In determining the best interests of the child for purposes of determining custody and visitation, Virginia courts are bound to consider the factors listed in Virginia Code Section 20-124.3. Though the factors listed in the statute are not exclusive, they pretty accurately capture the … Read More »
On occasion, a spouse in Virginia may find themselves defending against a petition for a protective order on the basis of family abuse without having complete knowledge or understanding of the allegations against them. This places that spouse at a tremendous disadvantage. However, the defending party can take certain steps in advance to determine the allegations against them so as to mount an effective defense.
Pursuant to Virginia Code Section 16.1-253.1, upon filing of a petition alleging that the petitioner is or has been, within a reasonable period of time, subjected to family abuse, the court may issue a preliminary protective order against an allegedly abusing person in order to protect the health and safety of the petitioner or any family or household member of the petitioner. Section 16.1-253.1 gives judges the authority to issue a preliminary protective order in an … Read More »
Efforts to Restrict Marriage of Minors Advance Through Virginia Legislature
Many spouses going through separation and divorce lament that the laws of Virginia make it much easier to get married than they do to get divorced. A divorce proceeding requires a reason to want to end the marriage and in most cases the spouses must be separated for more than a year before their divorce can be finalized. This leads to the not-uncommon situation where spouses must live separately for longer than they were married before getting their divorce!
In contrast, to get married in Virginia, two eligible parties must only obtain a marriage license and perform a ceremony. There are no required blood tests or number or witnesses to validate a marriage. The age requirement for marriage in Virginia is sixteen for both parties. However, if either party is under eighteen, … Read More »
Determining how to handle a business asset is one of the most complicated issues in many divorce cases. Under Virginia divorce law, circuit courts are given the responsibility of fairly dividing the value of any marital property of the parties. Marital property includes any property acquired by either party during the marriage, regardless of how it is titled. Sometimes the parties own and work in a business together, in which case the value of the business is less important than how the business will evolve into the new situation where the owners are no longer married. More often than not, however, one spouse has an ownership interest in a business while the other does not, in which case the value of the ownership interest becomes increasingly important.
So How Do Virginia Courts Value a Business in Divorce?
The Supreme Court of Virginia … Read More »
I often receive calls from people who have missed a court date for a traffic or criminal matter in Virginia. These calls typically fit within three general categories: (1) the person wrote the wrong date on their calendar, then went to court only to find out that their matter had already been adjudicated or resolved; (2) the person completely forgot their court date and remembered after the fact that they needed to be in court; or (3) the person missed their court date and found out that law enforcement was attempting to serve them some kind of document.
Over the next couple of blog posts, I am going to address what you can do if you had a court date and missed it. In this first post, I will deal with cases where there is no possibility of incarceration. Later, I will … Read More »