The Livesay & Myers, P.C. Blog
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 The aggrieved spouse must only show that the funds were withdrawn or used by the other spouse.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 »
Divorce is an emotional and overwhelming time in a person’s life. If you do not enter the divorce with the necessary financial information, the process may be even more overwhelming than anticipated. By taking certain actions at the start of the divorce process, you can protect yourself from future surprises, and potentially avoid a great deal of stress later on. Here are four financial steps you should consider taking before divorce:
1. Obtain Financial Documents
If you do not keep good financial records or have limited to no access to your financial documents, now would be the time to gather and retain copies of these documents. These documents should include: tax returns, checking, savings, and bank statements; investment statements, retirement account statements, and other documents that address any sources of your or your spouse’s income. Try to gather all of these financial documents for the last three to … Read More »
In most cases, when one thinks of adoption, they imagine a child being taken into a loving “forever” home. Virginia law, however, allows for the adoption of an adult, though specific circumstances must apply. For instance, a stepparent may adopt an adult stepchild if that stepparent has stood “in loco parentis” to the child for at least three months. Standing “in loco parentis” means standing “in place of a parent.”
In addition, a close relative of an adult may institute proceedings for the adoption. Under the applicable Virginia Code § 63.2-1242.1, a close relative is defined as a “grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, or adult great uncle or great aunt.”
The Virginia Code also permits a petitioner to adopt an adult if the person to be adopted is the birth child of the petitioner … Read More »
Prospective parents, when considering their options, may choose the international adoption route. When deciding whether or not this option is best for your family, it is important to have an idea what that process will look like. Some of the rules will differ depending upon whether you chose to adopt from a Hague or non-Hague convention country. The process will also vary based on the specific country from which you choose to adopt. What follows here is just a general overview of the international adoption process.
The Hague Convention, by the way, is an international agreement that sets forth common standards to protect children subject to an international adoption. If you are a United States citizen residing in the United States, and seek to adopt a child residing in another country subject to the Hague Convention, you will have to comply … Read More »
Sole vs. Split vs. Shared Child Support Guidelines
Virginia law recognizes the obligation of parents to support their children financially, and the Virginia child support guidelines account for that fact. The guidelines take into account the gross incomes of the parties, health insurance expenses incurred for the children, work-related childcare costs, and support of other children who were not born between the parties. Because both parents are financially responsible to and for their children, each parent is made responsible for a certain percentage of the whole child support amount determined under the guidelines, with the whole child support amount equaling what the parents would be able to provide for the children in the event the family still resided in one household.
Virginia has different child support guidelines for sole, split and shared custody arrangements. Each guideline is different and takes into account a … Read More »
A question I frequently receive from family law clients or potential clients is: “the other party has violated our court order—so what can I do about it?”
When one party violates a previous order from a Virginia court, the other party has the opportunity to petition the court for enforcement of the order. In Virginia, this is called a Petition for a Rule to Show Cause. At the Show Cause hearing, the judge will give the person alleged to be in violation an opportunity to defend their actions, and present evidence as to why they may have violated the court order. If the court is not satisfied by that evidence or explanation, it may hold the violating party in contempt and may issue a punishment based on the type and severity of the violation.
Punishments may be civil or criminal, and will vary depending on … Read More »