Are you separated from your spouse, or otherwise undergoing marital difficulties? If so, you may find yourself wondering whether your spouse can disinherit you. In Virginia, the short answer is no. Virginia law protects surviving spouses from being disinherited by allowing the surviving spouse to claim an “elective share” of the decedent’s estate if the decedent died without a will, if the spouse is omitted from the will, and even if the decedent explicitly disinherited the surviving spouse in the will. The right to an elective share continues even where the parties are separated or pending divorce, until a divorce is final.
What Are You Entitled to Under the Elective Share?
The answer to this question is going to change for decedents dying on or after January 1, 2017, based on some 2016 revisions to the Virginia Code.
For decedents dying before January … Read More »
Desertion v. Separation in Virginia
Virginia Code § 20-91 provides for divorce on either fault-based grounds or no-fault grounds in Virginia. The grounds for divorce listed there include, among others, both (a) the fault-based ground of willful desertion or abandonment, after one year and (b) the no-fault ground of living separate and apart without any cohabitation and without interruption for one year. The separation period for a no-fault divorce is shortened to six months where the parties have entered into a separation agreement and have no minor children.
All of which leads to this common question: how does one live “separate and apart” to qualify for a no-fault divorce, without being found guilty of willful desertion or abandonment?
Virginia courts distinguish desertion from mere separation by looking at the specific behavior of the parties. Courts have consistently found that one party moving out of the marital bedroom … Read More »
Virginia law allows for divorce based on both fault-based and “no-fault” grounds. The three fault-based grounds for divorce in Virginia are adultery, cruelty and desertion. In deciding which ground to file on, it is wise to start by considering the pros and cons of filing for divorce based on a fault-based ground in Virginia.
Advantages to Filing for Divorce Based on Fault
Unlike a “no-fault” divorce, if you decide to file for divorce based on fault, there is no statutorily mandated waiting period for filing. Many individuals who want to get the ball rolling on their divorce may choose to proceed based on fault (assuming it is applicable in their case). This advantage to a fault-based divorce is especially important in those cases where one spouse needs immediate, temporary child support or spousal support during the pendency of the divorce, which can be obtained through … Read More »
You have made the difficult decision to separate from your spouse, but there are insufficient funds in the family budget to support two households. Perhaps it is unclear which party will permanently remain in the marital residence, and neither is willing to move out without having a financial agreement in place. For whatever reason, you find yourself separated from your spouse while living under the same roof. There are several issues to be aware of if you are contemplating living with your spouse during separation in Virginia.
Clients frequently ask whether time spent separated yet living under the same roof as their spouse counts toward the requisite separation period necessary for a no-fault divorce. In Virginia, spouses can obtain a no-fault divorce after six months of living separate and apart without any cohabitation and without interruption, if there are no minor … Read More »
Postnuptial Agreements in Virginia
Every year, it seems that more and more individuals are seeking prenuptial agreements. What was once a tool used only by the rich and famous has increasingly become a mainstay of domestic relations law. Statistically, prenuptial (“existing or occurring before marriage”) agreements, or “prenups,” are used more often by individuals who have been married before or are getting married for the first time later in life. They are often used to protect a separately-owned business or to contractually limit (or eliminate) a spousal support obligation to the other party. But what if you’re ten years into a marriage and want to start a business? Or you decide to change careers to a more lucrative field? Can you still get the advantages of a prenup after marriage?
The short answer is “yes.” The Virginia Premarital Agreement Act is part of … Read More »
If you and your spouse have decided to end your marriage, you may be contemplating negotiation, rather than litigation. Divorce can be mentally, physically and emotionally exhausting to you, your children and your extended family. The effects of divorce may be reduced if you and your spouse can negotiate a settlement, rather than going to trial and having the court decide. A negotiated divorce will require some give and take by both parties, and neither one of you will get all you want. If successful, a negotiated divorce will result in a final agreement that both of you are willing to accept.
There are several possible options for negotiating a settlement in your divorce:
A negotiated divorce can be achieved via direct communication between the attorneys who represent the respective spouses. If there are only a few contested issues, the attorneys should … Read More »
In many divorce cases, the most valuable asset to be divided is a pension. Pensions, or “defined benefit plans,” pay retirees a specified recurring benefit upon retirement that the retiree receives for life. Examples of defined benefit plans are the Federal Employees Retirement System (FERS), Virginia Retirement System (VRS), and military retirement benefits. Two main characteristics of pensions make them so valuable: first, the payments received can add up to hundreds of thousands of dollars throughout the life of the retiree; and second, the pension pays its benefits in regular (usually monthly) intervals, creating a guaranteed stream of income for the recipient.
Another feature of defined benefit plans is that they only provide the benefit to the retiree—when the retiree passes away, all benefits cease. This is generally of no concern to a retiree in a divorce proceeding. But a former spouse could … Read More »
As a divorce attorney, I often hear the word “narcissist,” typically used by my client to describe his or her spouse, or vice versa. Usually the condemned partner is someone who is overly conceited or excessively self-centered, and not necessarily a narcissist. Although being particularly self-absorbed can come off as supercilious and arrogant, narcissism is much more than that. Narcissistic Personality Disorder is a real psychological disorder exemplified by a need for admiration and lack of empathy for others. Generally, narcissists genuinely believe the world revolves around them.
It is no secret that going through a divorce is extraordinarily difficult. However, divorcing a narcissist increases the conflict and turmoil tenfold. While there is nothing one can do to fully eliminate the effect of a narcissist on the divorce process, there are certain actions that can help minimize the emotional toll on … Read More »
Due to modern medicine and a societal focus on healthier lifestyles, people are living longer than ever before. According to the Centers for Disease Control and Prevention’s National Center for Health Statistics, the average life expectancy in the United States for men is now 76.4 years, and 81.2 years for women. It makes sense then that Americans over the age of fifty are headed toward divorce at an unprecedented rate. Sociologists at Bowling Green State University found that one-quarter of all divorces in America involve spouses over the age of fifty—the “gray divorce”—a rate which has doubled since 1990. One in ten divorces now are between spouses over the age of sixty-five.
In addition to the fact that people are simply living longer, we can speculate on other reasons why individuals over the age of fifty are seeking divorces at such … Read More »
Divorce can be a lengthy process in Virginia. In no-fault cases, Virginia law requires parties to be separated for at least twelve months, or for at least six months with a separation agreement and no minor children, prior to even filing for divorce. And contested or fault-based divorces can take much longer than no-fault cases—sometimes dragging on for years, depending on the jurisdiction and issues involved. However, in many cases the parties have very real needs that must be addressed prior to the final hearing in their divorce. Thankfully, Virginia law allows courts to enter orders granting “pendente lite” (pending final resolution) relief to address those needs.
Virginia law grants the court the authority to issue pendente lite orders in any divorce case. Either or both parties may file a motion for pendente lite relief, either when the case is initially filed or at any time … Read More »