In Virginia divorce actions, one of the first questions parties often ask is “who is going to get to keep what?”
Virginia is an equitable distribution state, meaning that the court has the authority in any divorce to classify the property of the parties as separate, marital or hybrid. This classification is vitally important, because the court only has the power to divide marital and hybrid property—not any separate property.
In Equitable Distribution: Using Separate Property For A Marital Loan, Livesay & Myers, P.C. associate Danielle Snead explained the Virginia Court of Appeals decision rendered in Layman v. Layman and the impact on property classification when a party uses separate property throughout a marriage.
The Court of Appeals in David v. David, Va. App., Record No. 0653-12-2 (2015) recently highlighted another potential pitfall on the road to proving separate property is actually separate. The David case illustrates … Read More »
In Virginia, a petition for custody or visitation may be filed by either parent or by any “person with a legitimate interest.” Virginia law defines a person with a legitimate interest broadly to include grandparents, stepparents, former stepparents, blood relatives and family members such as aunts, uncles or adult siblings. Once the court finds that a person seeking custody or visitation qualifies under this definition, then it will consider the best interests of the child in determining whether custody or visitation should be granted, and making any other rulings pertaining to the petition before it.
Any person who has had his or her parental rights terminated by a court, or who seeks access to a child for another who has had his or her rights terminated, voluntarily, involuntarily or by adoption, may not be considered a person with a legitimate interest—regardless of … Read More »
According to statistics released on Wednesday by the U.S. Department of Defense, the military’s divorce rate dropped again last year, and has reached its lowest level since 2005.
In 2014, the divorce rate among enlisted and officer men and women was 3.1 percent. The military divorce rate has steadily decreased since 2011, when it reached a high of 3.7 percent. In 2001, when the wars in Iraq and Afghanistan were beginning, the rate was only 2.6 percent.
By contrast, the civilian divorce rate stands at approximately 3.6 percent, according to the most current data available.
One gender is largely responsible for the steady decline in military divorces. Since 2011, the female military divorce rate has dropped from 8.0 percent to 6.5 percent, accounting for most of the overall reduction. Female Marines saw the largest decrease in divorces, from 9.5 percent in 2011 to … Read More »
Going through a divorce can be stressful enough without the added element of marriage-based immigration issues. While all your time and energy may be focused on terminating your marriage, you cannot neglect how this change in your relationship may or may not affect your ability to remain in the United States after your divorce. Here are answers to ten questions which commonly arise when divorce and immigration intersect:
Will separation from my spouse affect my immigration benefits? Generally, no. Physical or legal (court-ordered) separation from your spouse does not constitute a termination of your marriage and will not affect your immigration status. In some states, an extended legal separation may convert into a divorce after a period of time. In these instances, your immigration status would be terminated if it is dependent upon your marriage.
Will my divorce affect my non-immigrant status? If your … Read More »
Family law attorneys are constantly asked what, if any, advantage there is to filing first. Whether it is for divorce, custody or support, the answer is both “yes, there is an advantage” and “no, there is not an advantage.”
The answer is “no,” because your allegations, evidence, and prayers for relief will be reviewed impartially by the court—whether you filed first or not. The judge will not favor either party because of the order of filing.
The answer is “yes” for two main reasons: (1) you get to set the pace for litigation and/or settlement, and (2) you get to speak first and last in the event your case goes to trial.
Setting the Pace
Filing first means having some degree of control over the pace and nature of litigation and/or settlement. Are you hopeful for a settlement, and do you want to demonstrate that to the opposing party? Are you … Read More »
You’ve succeeded in getting the court to enter a child support order for your child. It has been a few months and the obligated parent is no longer paying or is not paying the full amount. The child support arrears are growing with every passing month. The Virginia Division of Child Support Enforcement (DCSE) may be able to get the money flowing again. Below are some tools at their disposal, which you may put to work on behalf of you and your child.
Child Support Enforcement Tools
The primary way to enforce a child support order is through wage withholdings. But if non-custodial parents don’t receive a regular paycheck, are self-employed or work for commissions, the DCSE has other enforcement tools at their disposal. Those tools include placing liens on real or personal property, seizing income or financial assets, intercepting state and federal … Read More »
Imagine a married couple separates and one party moves out of the Commonwealth of Virginia, with no intention to return. The spouse who remains in Virginia wants to pursue a divorce. A circuit court in Virginia can divorce the parties, as long as there are grounds for divorce and the proper procedures are followed. But what if the Virginia resident wants to request spousal support?
For the Virginia court to order spousal support in that situation, it must first find that it has personal or “in personam” jurisdiction over the non-resident. There are several ways that a court can have personal jurisdiction, per Virginia Code §8.01-328.1. There are two, however, that are of particular importance to parties going through a divorce.
First we have Virginia Code §8.01-328.1(A)(8), which provides that a court may exercise personal jurisdiction over a person who:
…executed an agreement … Read More »
Virginia child or spousal support cases involving military servicemembers present unique and sometimes challenging issues. Servicemembers have a pay structure much different than that of a civilian. Military pay can be any combination of basic pay, benefits, entitlements, allowances, and/or special and incentive pay. With the various types of pay, some taxable, many non-taxable, how does a servicemember know what pay the court will look at to determine spousal or child support? Can the court consider non-taxable pay such as disability pay for spousal support or child support? Are special entitlements such as Post 9-11 GI Bill benefits considered income for purposes of determining support?
Military Pay and Child Support in Virginia
Virginia courts use the same factors in every child support case to determine the amount applicable under the statewide child support guidelines. The court may deviate from “the guidelines amount” … Read More »
Appeals Filed By Both Sides
Previously on this Blog, Livesay & Myers, P.C. senior associate Matthew Smith explained the decision rendered in the divorce action between Continental Resources CEO Harold Hamm and his now-ex-wife, Sue Ann Arnall. This case was, and is, noteworthy because the decision awarded Ms. Hamm almost one billion dollars ($955,481,842, to be precise) for her share of the marital estate. If the trial court’s decision stands, this will be one of the largest divorce settlements of all time. The highest recorded settlement to date was for the divorce of Russian oligarch Dmitry Rybolovlev ($4.5 billion dollars).
However, at present both parties to this proceeding have filed appeals to the Oklahoma State Supreme Court. Oklahoma, like Virginia, is an equitable distribution jurisdiction, where the court determines the extent of the marital property, excludes certain assets as the separate … Read More »
As everyone knows at this point, same-sex marriage is now legal in the Commonwealth of Virginia. On October 7, 2014 Governor Terry McAuliffe signed Executive Order #30 titled “Marriage Equality in the Commonwealth of Virginia.” The order directed all state agencies, authorities, commissions and other entities within Virginia to quickly make any necessary policy changes to afford same-sex couples the same benefits as heterosexual couples.
Now that Virginia allows and recognizes same-sex marriages, same-sex couples will no longer need to travel outside the Commonwealth to resolve their family law issues. Below is a summary of the impact of marriage equality on four areas of family law in Virginia:
1. Divorce. Any couple with a valid marriage from Virginia, a foreign state or country may now file for divorce in Virginia, provided the parties were married in Virginia, last resided as a couple in Virginia, or one spouse has resided … Read More »