In response to the Coronavirus Disease 2019 (COVID-19) pandemic, on March 16, 2020 the Supreme Court of Virginia entered an order declaring a judicial emergency in Virginia. The initial judicial emergency order declared the judicial emergency through April 6, 2020, but the Supreme Court subsequently entered two additional judicial emergency orders, each time extending the emergency period by an additional 21 days. As of its most recent judicial emergency order, the Supreme Court has extended the judicial emergency period through May 17, 2020.
The judicial emergency order limits matters being heard in Virginia courts during this time—however, courts are not closed entirely. While courts are not operating at their normal capacity, judges are are still hearing cases. The order instructs Virginia courts to give precedence to certain emergency matters including emergency child custody cases, quarantine or isolation matters, and protective order cases.
The … Read More »
On March 12, 2020, Governor Northam declared a state of emergency in the Commonwealth of Virginia in response to the Coronavirus Disease 2019 (COVID-19) pandemic. In further response to the spread of the COVID-19, Virginia has implemented travel bans, limited public gatherings, closed schools for the remainder of the school year and implemented telework policies in an effort to keep as many Virginia residents in their homes as possible during this time.
On March 16, 2020, the Supreme Court of Virginia issued an order declaring a judicial emergency in Virginia through April 6, 2020. The Supreme Court subsequently entered two additional judicial emergency orders, each time extending the emergency period by an additional 21 days. As of its most recent judicial emergency order, the Supreme Court has extended the judicial emergency period through May 17, 2020.
The judicial emergency order limits matters being … Read More »
On January 1, 2019, big changes went into effect for the military retirement system for active duty and retiring servicemembers. The legacy system in place prior to January 1st provides military servicemembers with 20 or more years of service with a monthly annuity, based on years of service, upon retirement.* In addition to the annuity, servicemembers have been able to contribute to the Thrift Savings Plan (TSP), the equivalent to a military 401k account, as an additional means of saving for retirement.
The new retirement plan, called the Blended Retirement System (BRS), blends these two options for new servicemembers and for servicemembers with less than 12 years of service who opt in to the new plan. The BRS maintains the annuity based on years of service, but now the Department of Defense (DoD) will also automatically contribute 1% to the servicemembers … 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 »
The rules for establishment of paternity vary greatly in Virginia depending on whether a child is born to a married or unmarried mother.
Establishment of Paternity of a Child Born to a Married Mother
A child born to a married woman in Virginia is presumed to be the child of her husband, so long as they were married for the ten months preceding the birth of the child. The husband is the “presumptive father” of the child, with the same responsibility for child support as a “legal father” (one who has been proven to be the father of a child).
However, the presumption of paternity in Virginia is rebuttable. In other words, the husband has the opportunity to prove that he is not the father despite the fact that he was married to the mother at the time of birth.
There are many ways … Read More »
In an unpublished opinion issued on April 21, 2015, the Virginia Court of Appeals upheld the ruling of a trial court that same-sex couples cannot cohabit under Virginia law. The case, Lutrell v. Cucco, might prove to be very important in the evolution of the law regarding same-sex relationships in Virginia.
In Lutrell v. Cucco, Mr. Lutrell (represented by Livesay & Myers, P.C.) filed a motion to terminate his $2,450 per month spousal support payment to his ex-wife Ms. Cucco based upon her cohabitation with another person for more than a year, pursuant to Virginia Code §20-109. That code section states in relevant part that:
[u]pon order of the court based upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing … 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 »
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 »
Summertime! It is the time of year where many of our military families are going through their permanent change of station (PCS) moves, and many of our civilian families are moving before the new school year begins.
What does relocation mean for separated or divorced parents who are co-parenting a child in Virginia? The juvenile and domestic relations district courts of Virginia will examine the best interests of the child in each case by applying the statutory factors of Virginia Code Section 20-124.3; but a relocating parent has a significant burden beyond those factors.
Where there is a current court order in place, an impending relocation is always considered a material change in circumstances which allows the court to re-examine the facts of the case.
Unfortunately for the parent hoping to relocate, the current trend of the Virginia Court of Appeals … Read More »
A Family Care Plan (FCP) is a document that certain active duty or reserve servicemembers, and some DOD civilians, are required by the Department of Defense to maintain in order to ensure that their children (and incapacitated parents) are taken care of if they are called away to service.
Any person required by DOD Instruction 1342.19 to maintain a Family Care Plan must do so in a certain amount of time. Other than the requirements with respect to timely filing, the instructions are fairly broad as to what can and should be included in the FCP.
At a minimum, a Family Care Plan allows the military member to designate another party to care for his or her child during any period where the member is unavailable due to military service obligations.
Though the DOD requires this plan of action and files it in each servicemember’s … Read More »