The Livesay & Myers, P.C. Blog

In Virginia, there are two types of courts that handle family law cases: juvenile and domestic relations district courts (“J&DR courts”) and circuit courts. Circuit courts have the authority to hear divorce cases and all matters stemming from divorce, including child custody, visitation and support, spousal support and equitable distribution. J&DR courts can hear cases of custody, visitation, child support and spousal support, but have no authority over divorce matters. J&DR courts thus hear many cases involving unmarried individuals who share children—but are not off limits to married persons by any means.

In some instances, married individuals may file petitions for custody, visitation or support in J&DR court, even if they intend to ultimately seek a divorce in circuit court. In many cases, neither individual of the married couple has grounds to file for divorce in Virginia, but still needs a determination … Read More »

If you do not know the whereabouts of your spouse, it is still possible to proceed with a divorce. Because each party in a divorce must have notice of any claims asserted against them, an absent spouse becomes an issue for purposes of service, which is the process by which parties to a case are provided with notice of the legal proceedings. In these cases, notice can be provided by using “service by publication.” Service by publication is the method of publishing an order, which acts as sufficient notice of the divorce proceedings to the spouse whose location cannot be found.

There are several potential issues with service by publication that you should be aware of if you intend to use this method in your divorce case.

First, service by publication is only to be used when one spouse truly has no … Read More »

For purposes of calculating child support, the Virginia Child Support Guidelines take into account each parent’s gross income. Virginia Code § 20-108.2(C) defines “gross income” as “income from all sources,” including but not limited to:

income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.

§ 20-108.2(C) further provides that “[g]ross income shall be subject to deduction of reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business.”

Pursuant to this code section, Virginia courts have consistently deducted expenses associated with rental properties from the rental income on those properties in calculating gross income. Some of the expenses commonly deducted include: mortgage payments, taxes, insurance, … Read More »

An advance medical directive is a legal document that allows a person to state what they want for their own medical care if they are unable to make decisions for themselves due to incapacity.
In Virginia, advance medical directives are authorized under the Virginia Health Care Decisions Act.

An Advance Medical Directive may be used to:

specify what the person executing the directive (known as the declarant) does or does not authorize with regard to his or her healthcare;
appoint an agent or a third party to make healthcare decisions for the declarant; and
specify anatomical gifts of a specific part or parts of the declarant’s body, or the declarant’s entire body, for organ and tissue donation.

Executing an Advance Medical Directive

Per Virginia Code § 54.1-2983, in order to be a legally binding document an advance medical direct must be signed by the declarant in the … Read More »

People undergoing the process of separation and divorce face many major, life-changing events all at one time. First and foremost in the minds of most parents in this situation is the issue of child custody. The initial question on the minds of many is: “Can I get sole custody of my kids?” While many parents are inclined to seek sole custody of their kids, very few are familiar with what the term “sole custody” actually means, and the difficulty that comes with trying to win sole custody of children in Virginia. 

In Virginia, there are two types of custody: legal and physical. Legal custody is the right to make decisions for your children, including major decisions such as healthcare, education, and religious upbringing. Physical custody is where the children live. Visitation is a subset of physical custody, and can be generally … Read More »

It is not uncommon for people undergoing divorce to approach their attorneys with a laundry list of terms regarding their children that they would like included in their separation agreement, or for people who already divorced to approach attorneys with child-related terms of an existing separation agreement which they need enforced. What many people are surprised to hear is that some of those terms which they would like included, or some of the terms that may already be in their agreement, are actually unenforceable under Virginia law.

The first thing to understand in this area is that provisions in agreements regarding child custody, visitation and child support are always modifiable based upon a material change in circumstances. Always! So, any provision in an agreement which indefinitely prohibits the modification of custody, visitation or child support would be unenforceable.

Secondly, there are plenty of … Read More »

In Virginia, a spouse who spends or disposes of marital property for an improper purpose (a) anticipating a separation or divorce or (b) after the final separation of the parties may have committed “marital waste.” The court has the authority to consider such behavior in making an equitable distribution award.

Marital waste (or “dissipation of assets”) typically occurs when one party transfers funds out of a marital account or otherwise misuses marital funds after the marriage begins deteriorating. The aggrieved spouse must only show that the funds were withdrawn or used by the other spouse. The burden of proof then shifts to the alleged wrongdoer to prove by a preponderance of the evidence that the funds were spent on a proper purpose. It should be noted that Virginia courts have held that spending money on living expenses post-separation does not usually constitute … Read More »

So, you think, or you know, that your spouse is cheating on you. As devastating as this discovery can be, many people are just as devastated to find out that Virginia law can, and often does, protect the adulterer.

In Virginia, adultery is defined as the act of sexual intercourse by a married person with any person who is not their spouse. It is a ground for divorce under Virginia Code § 20-91. It is also illegal, a Class 4 misdemeanor according to Virginia Code § 18.2-365. While adultery as a crime is rarely, if ever, prosecuted, the fact that adultery is still technically illegal in Virginia has a significant impact on many divorce cases.

For a court to grant a divorce on the ground of adultery, Virginia law requires proof by “clear and convincing” evidence, a higher standard of proof than other grounds … Read More »

The National Defense Authorization Act (NDAA) for 2017, signed into law in December 2016, drastically changes the way military retired pay can be divided in divorce cases. The new NDAA made major changes to the Uniformed Services Former Spouse Protection Act (USFSPA), which is the federal law enacted in 1982 that allowed states to divide military retired pay as marital property in divorce.

The original USFSPA did not provide for any particular division of a servicemember’s military retired pay. Rather, each state was able to develop methods of dividing military retired pay based on their existing state laws concerning division of property in divorce.

Virginia, as an equitable distribution state, awarded a former spouse a portion of the “marital share” of the servicemember’s retired pay. The marital share was a fraction of the total retired pay, with the numerator being the creditable service … Read More »

For years, Virginia circuit courts were split on the question of who gets the engagement ring after a breakup in Virginia. Some courts held that the engagement ring could not be recovered because such claims are barred under Virginia Code § 8.01-220. Known as the “heart balm” statute, that code section bars civil actions for breach of promise to marry (along with civil actions for alienation of affection, criminal conversation and seduction). However, other courts held that the engagement ring could be recovered because the party seeking to recover the ring is not seeking damages due to a broken promise to marry, but rather is asking for the return of a conditional gift, the condition being the marriage. Therefore, these courts held, when the engagement breaks off, the condition is not satisfied and thus the gift (the ring) should be returned.

The Virginia Supreme … Read More »