The Livesay & Myers, P.C. Blog
Under Virginia law, cheating on a spouse is illegal. In Virginia, any married person who voluntarily has sexual intercourse with a person who is not his or her spouse is guilty of adultery, which is punishable as a Class 4 misdemeanor. The maximum criminal penalty for adultery is a $250 fine, but the ramifications in a divorce action may be much more severe. Adultery can be used as a fault ground to obtain a divorce, may be a bar to spousal support and can be considered regarding child custody and equitable distribution of marital property.
Even so, what happens when a cheating spouse invokes his or her Fifth Amendment privilege against self-incrimination? In Virginia, a party can exercise his or her constitutional privilege against self-incrimination in both criminal and civil actions. Depending on the circumstances of the case, a cheating spouse’s … Read More »
Relationships, custody disputes and divorces can all be volatile, with emotions running high. The emotions can spill over into harsh words or abusive behavior. Virginia law allows courts to enter protective orders, both long term and short term, to protect individuals against family abuse. These protective orders can protect not only the party seeking the protective order but also any other members of the household, such as children, other family members, or roommates.
Virginia Code § 16.1-253.1 provides courts the statutory authority to enter “preliminary protective orders” in Virginia. A preliminary protective order is usually done ex parte, meaning without the alleged abuser present, and is done either on an affidavit by the petitioner or by sworn oral testimony of the petitioner. If the court finds that “within a reasonable period of time” the petitioner has been subjected to “family abuse,” … Read More »
The Supreme Court of the United States issued a landmark decision on June 26, 2015 when Obergefell v. Hodges, 135 S. Ct. 2584 (2015) allowed for same-sex marriage in all fifty states. What this opinion did not address, however, was parentage of children born into those same-sex marriages or legal rights of non-birth parents to children born into those marriages through assisted conception.
Under Virginia law, a marriage creates a presumption of parentage. Virginia Code § 20-158 states that the gestational mother or “birth mother,” and the spouse of a birth mother, are the two parents of a child resulting from assisted conception. This allows for a birth mother and her wife to both be listed on their child’s birth certificate when the Department of Vital Statistics records the child’s information.
However, the presumption of parentage does not necessarily convey legal … Read More »
Now that you are separated from your spouse, you may be asking yourself: “I want to move on with my life and meet new people. Can I reenter the dating world? What happens if I become romantically involved with someone?” Unfortunately, under Virginia law there are no simple answers to these questions. For those who are currently separated and either dating or are thinking about dating, there are several factors to consider.
First, unlike some states, there is no such thing as a “legal separation” in Virginia. Under Virginia law, you are either married or divorced, so even though you may be separated from your spouse physically, you are still married in the eyes of the law. With that being said, no one can prevent you from dating during your separation. It is not a crime to do so, and … Read More »
Custody disputes can be very contentious and it is often the case that at least one of the parents is dissatisfied with the court’s decision once all is said and done. However, the dissatisfied party can take some solace in knowing there is additional recourse available to them. That recourse is to appeal the decision of the court that entered the custody and visitation order to a higher court. The process for appealing a custody and visitation order in Virginia differs based on whether the order was entered by a juvenile and domestic relations court (“J&DR court”) or circuit court.
Appealing a J&DR Court Custody and Visitation Order
In the event your custody and visitation order was entered by a Virginia J&DR court, you have the automatic right and option to appeal the order to circuit court. See Virginia Code § 16.1-296(A). The right to … Read More »
If you have a custody and visitation matter before a Juvenile and Domestic Relations District Court in Virginia, there is a chance that the court will appoint a guardian ad litem (“GAL”). The GAL will be a local attorney certified to serve as a GAL. The purpose of the GAL, per Virginia Supreme Court Rules 8:6, is to “vigorously represent the child, fully protecting the child’s interest and welfare.” It is the GAL’s job to tell the court what he or she believes is in the child’s best interests.
Following the appointment of the GAL, the parties to the case will receive an order containing the name and phone number of the GAL. The court has the discretion to appoint a GAL even over the objection of both parties to the case. The GAL will not be permitted to speak with any … Read More »
What happens to a custody order when you move from one state to another with your child(ren)? If you have moved from another state to Virginia and have a child custody order signed by a judge in your former state, you will probably want to register that order for enforcement in Virginia courts.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides that one state court will recognize the custody order of another state court if the order has been properly registered. The Commonwealth of Virginia has adopted UCCJEA provisions into the Virginia Code. As set forth in Virginia Code § 20-146.24, a court of the Commonwealth has a duty to enforce a child custody determination of a court of another state if either the “latter court exercised jurisdiction in substantial conformity with the UCCJEA,” or “the determination was made under … 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 »
Going through a divorce can be a time of uncertainty, and you probably have many questions about the process. While there are many issues that arise during a divorce, one of the main concerns you might have is how your property is going to be divided. You may be wondering what is going to happen to the marital home, bank accounts, retirement accounts and pensions, personal property, and debts. How will the court divide everything?
These questions are only compounded when one of the parties has received an inheritance. What about that money your grandparents left for you in their will when they passed away years ago? Or how about the summer vacation home that has been in your spouse’s family for years? Is a person entitled to part of their spouse’s inheritance, even though it was meant as a gift … Read More »
When parents decide to split up, the first thought to enter their minds is often “What is going to happen to the children?” In many cases, one or both parties will file Petitions for Custody and Visitation to protect the interests of their minor children. Depending on which court the petitions are filed in, the parties may not obtain a resolution to their custody and visitation dispute for several months, or in some cases a year or more.
Due to the number of family law cases being filed these days, courts are encouraging parties to mediate their claims and/or enter into “consent orders.” A Consent Custody and Visitation Order is a court order wherein the parties agree on the terms relating to custody and visitation of the minor children. Although some parties just cannot agree on custody and insist on litigating … Read More »