Many couples who separate for the purpose of divorcing do not have the financial resources or the desire to spend their financial resources on retaining attorneys. We attorneys aren’t offended by the idea of couples mediating between themselves an amicable resolution. However, we always caution people to speak with an attorney before signing any agreement. Some might think it’s our way of getting your money—but the reality in Virginia is that once an agreement is signed it is extremely difficult, if not impossible, to set aside.
There is a long standing principle that people can make as good or as bad of a contract as they want. This is especially true in separation agreements, which can be set aside in Virginia only on limited grounds—when they were entered into under “undue influence” or are “unconscionable.”
The difficulty of setting aside separation agreements … Read More »
Most young couples marry in full anticipation of growing old together. But life is complicated. Sometimes, as couples grow older, they grow apart rather than together. And, sometimes, they divorce. Among the many things that must be considered in a divorce, it is important to think about the future—including retirement in general, and Social Security benefits in particular.
What effect, if any, does divorce have on your Social Security benefits?
In order to answer this question, first we must consider the benefits to which married persons are entitled under Social Security. Married persons have the right to apply for:
benefits based on their own contributions to Social Security over their lifetimes;
spousal benefits based on their spouse’s contributions to Social Security, so long as they are at least 62 years of age and their spouse is receiving (or is eligible to receive) … Read More »
A 529 plan is an education savings account that parents may set up to pay their children’s future college education costs. Otherwise known as a “Qualified Tuition Program” in the Internal Revenue Code, 529 plans are typically established through individual states or educational institutions and provide a variety of benefits. The primary benefit is that earnings derived from the investment of a 529 plan are not subject to federal taxation when used to pay college education costs. Unlike 401k accounts, however, the contributions to a 529 plan are not excluded from taxation, and there is no third party “matching” of funds.
To set up a 529 plan, you need one custodian (also known as the account holder), one beneficiary, and a plan administrator to invest the contributions. Parents who set up a 529 plan for their child can do so in … Read More »
When parties file a complaint for divorce, they often ask the court to determine a myriad of issues: spousal support, child support, child custody and visitation, and the division of property. In Virginia, courts will decide how to divide the parties’ property through a process called “equitable distribution.”
The first step in equitable distribution is to classify all property as separate, marital, or hybrid. Generally, marital property is any property that is acquired during the marriage, whereas separate property is any property that was acquired by a party (a) before the marriage, (b) after the parties separated or (c) during the marriage from an inheritance, gift from a third party, or other source outside the marriage. Hybrid property is a mixture of the two: it is separate property that has been commingled with marital property, making it part marital and part separate. … Read More »
The choice of a family law attorney is always very personal. Given the subject matter, you’ll want to work with someone you can trust, who is nonjudgmental and willing to listen and learn about your circumstances. Considering what may be at stake, your choice of lawyer should be experienced, hard-working and committed, but also willing to find ways to save you money and help you move on as soon as is practical. From my experience, here are three questions that every potential client should have answered before making a significant financial commitment to a custody or divorce attorney:
Will you work as hard to settle my case as you will to try it? At first, this may seem unusual. Working hard to settle means caving in, right? Doesn’t extending an olive branch equate to surrender? Far from it. Contrary to popular … Read More »
In a case recently reviewed by the Virginia Court of Appeals, a wife sought appeal of her divorce case because the judge refused to grant a fault-based divorce on the ground of pre-marital cruelty. The trial court in her case instead entered the divorce based on the parties’ living separately, and the Court of Appeals decided there was no error in so doing. In Virginia, if more than one ground for divorce exists, the trial judge has discretion to enter the divorce on any applicable ground. The Court of Appeals, relying on this rule, held that even if the wife had proved pre-marital cruelty, the trial judge acted properly in choosing to grant the divorce on the no-fault ground of the parties’ separation.
In the course of reaching its decision, the Court of Appeals “assum[ed] without deciding” that pre-marital cruelty is a valid ground for divorce in … Read More »
It is a common story. You get married. You and your new husband or wife buy a beautiful new home. Everything is grand.
But then everything, gradually, over time, becomes… less grand, downright miserable, in fact. You separate. You contemplate divorce. You visit an attorney.
The question arises: what happens to the money that you (or your spouse) used to make the down payment? What happens to that money when you divorce?
There is a general rule that applies to this scenario under Virginia law. Just as background, real estate, when purchased during the marriage, is, by default under Virginia law, marital property regardless of how the real estate is titled. That is, the real estate can be titled in both of your names or solely or in the name of one party. It makes no difference to the question of whether or … Read More »
When preparing a client or witnesses for a hearing or a trial, I always find myself repeating one thing over and over – the hearsay rule! What is hearsay? Why is hearsay evidence inadmissible? Are there exceptions?
Without writing a dissertation, I will try to sum a few things up about the hearsay rule as it relates to custody, divorce and other family law cases in Virginia.
What is Hearsay?
The Supreme Court defines hearsay as “testimony given by a witness who relates, not what he knows personally, but what others have told him, or what he has heard said by others.” Cross v. Commonwealth, 195 Va. 62, 74, 77 S.E.2d 447, 453 (1953). Note that hearsay is not limited to oral statements. Hearsay includes conduct, gestures, writings, and even silence in some cases. Further note that in order for a statement to … Read More »
If you are involved in a contested divorce in the Commonwealth of Virginia, the court will eventually set a date for an equitable distribution trial. At that trial, you and your spouse will have the opportunity to present proposals to the court for distribution of the marital property and debts. Occasionally, one party in an equitable distribution hearing will allege that the other has misused or deliberately disposed of marital property to purposefully deprive the other party of his or her share. This behavior is commonly known as “marital waste” or “dissipation of assets,” and the court has authority to consider such behavior in making an equitable distribution award.
But how does the court know when marital waste was purposeful? The general rule in Virginia, stated in Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569 (1988), is that “waste may be … Read More »
A key step in every contested divorce case in Virginia is the pendente lite hearing, where the court puts in place a number of ground rules to govern the parties until the divorce is final. “Pendente lite” is a Latin term which essentially means “pending the litigation” or in this context, “pending the final divorce.” In many cases these pendente lite ground rules include an order for temporary child and spousal support.
Each county has their own set of procedures regarding these hearings. For example, pendente lite hearings in Fairfax follow a very rigid structure, including a strictly-enforced 30 minute time limit. Stafford County also follows a schedule with most all hearings being 30 minutes, but Stafford is unique in its near universal drive to have parties attempt mediation before their temporary hearings.
The Virginia Code authorizes courts to refer any contested civil matter (such as a divorce … Read More »