The Fairfax County Circuit Court recently issued an opinion that sheds light on an important aspect of Virginia divorce law: when divorcing parties include a provision for spousal support in a separation agreement that is incorporated into a divorce decree, that spousal support can only be modified later if the language of the agreement specifically allows for modification.
In Gordon v. Gordon, the parties divorced in 2003 after signing a separation agreement that provided for an award of spousal support (alimony). The Agreement made support non-modifiable, stating:
The husband agrees to pay to the wife, as and for her non-modifiable support and maintenance, the sum of One Thousand Dollars ($1,000.00) per month, the initial payment to be made on the first day of the month following execution of this Agreement by both parties, and to continue in consecutive monthly installments on the first … Read More »
Military divorce cases often involve discussion of military retired pay, the Survivor Benefit Plan, and continuation of the spouse’s medical benefits after divorce. A growing topic of discussion in these cases is the servicemember’s education benefits under the Post-9/11 GI Bill. Increasingly, these benefits are becoming a topic of negotiation in separation agreements between divorcing couples.
The GI Bill can cover all in-state tuition and fees at public degree-granting schools. It also provides for a housing stipend and book allowance while in school. The benefits may be used up to 15 years after the servicemember’s discharge from active duty. Eligibility for Post-9/11 GI Bill benefits requires a minimum of six years of service. Separate requirements apply for reservists. Servicemembers may transfer their Post-9/11 GI Bill benefits to a spouse or child, but only after meeting an additional service obligation of four years.
Under 38 U.S.C. § 3020(f)(3), Post-9/11 … Read More »
In the course of almost a decade practicing family law in Virginia, I’ve been able to identify some of the best and worst practices in the field. Four times out of five, if I’m familiar with opposing counsel in a case of mine, I’ll know how the case will proceed. After a while you can identify the attorneys who have their clients’ best interests constantly in mind, and the ones who are lazy or (far worse) less than honest and have the tendency to “milk” a case when simple solutions exist. Luckily these attorneys make up only a narrow sliver of our practice area, but their behavior can give us all a bad name.
Attorneys matter, and who you and your spouse select will have an enormous impact on the way your divorce plays out, for better or worse. Here are … Read More »
When going through a contested divorce or custody case many clients struggle with the concept of discovery, why it is necessary, and how it can benefit their case. Discovery is the legal process in which a party may ask questions of the other party and request documents relevant to the case. Discovery is an integral part of the litigation process because it provides notice to each side of the specific issues in contest, and evidence to help build their case. Many clients find that discovery can be their greatest asset or their worst enemy. For those clients that struggle with the discovery process it is generally because they are unprepared. Here are five tips for making the discovery process work for you:
Prepare before or at the beginning of the case. Discovery is typically issued at the onset of the case. Once … Read More »
Delegate Scott A. Surovell, a Fairfax family law attorney, has introduced House Bill 940 (HB 940) to decriminalize adultery in Virginia. Virginia Code Section 18.2-365 defines adultery as the act of a married person voluntarily engaging in sexual intercourse with any person not his or her spouse. Currently, adultery is punishable in Virginia as a Class 4 misdemeanor—which has serious repercussions for parties seeking to divorce their spouse based on the ground of adultery.
Because adultery is a crime in Virginia, a spouse accused of adultery in a divorce can assert their 5th Amendment right against self-incrimination, and refuse to answer questions about the adulterous behavior. This can make proving adultery in Virginia divorce cases extremely challenging. In effect, the criminal law against adultery serves to shield those accused of adultery in their divorce cases.
If HB 940 passes and becomes law, the penalty for committing adultery would … Read More »
If you are going through a divorce or other family law case, it is advisable to hire an experienced family law attorney as early in the process as possible. Not only will your attorney help guide you through the process, he or she will also serve as your advocate and voice so that you can get the best possible result without having to stand alone. It is no secret, however, that legal fees in a family law case can be expensive—and you want to receive value for your money. Here are five tips for getting the most from the relationship with your family law attorney:
Pick wisely. Not all attorneys are created equal. Make sure you feel comfortable with your attorney’s personality, level of professionalism, and views about your case. Feel free to seek a second opinion with another attorney so that you … Read More »
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 »
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 »