The Livesay & Myers, P.C. Blog
Elective Shares in Virginia: Can Your Spouse Disinherit You?
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 »
Seven Things You Should Know About Powers of Attorney in Virginia
Powers of attorney are valuable tools for managing your business and personal affairs, and health care. If you are considering one, here are seven things you should know about powers of attorney in Virginia:
1. What Is a Power of Attorney? A power of attorney is a legal document that allows you (the “principal”) to appoint someone (the “agent”) to act on your behalf. A limited power of attorney contains language that restricts the agent’s authority to a specified act or specified period of time. A general power of attorney is effective upon signing and gives the agent authority to do anything you could do for yourself, but it is no longer effective if you become incapacitated. A springing power of attorney (also called a conditional power of attorney) becomes effective if and when you become incapacitated; it can also be … Read More »
Child Support for Children With a Disability In Virginia
For single parents of children with a disability or special needs, navigating the issue of child support can be a confusing and anxiety-ridden process. These parents may require more child support than is called for by the statewide guidelines in Virginia, and may require child support well past the time child support usually ends. A proper understanding of several points of Virginia law can greatly assist these parents in meeting the special needs of their children.
Deviation From Guidelines
The starting point for determining child support in all Virginia cases is Virginia Code § 20-108.2, which sets forth statewide child support guidelines. The guidelines provide a child support amount based on the incomes of the parties and any costs incurred for health care coverage and work-related child care. While such a straightforward formula may be appropriate under ordinary circumstances, custodial parents of children with a disability … Read More »
Did My Spouse Abandon Me or Are We Separated?
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 »
Should You File for Divorce Based on Fault in Virginia?
Virginia law allows for divorce based on both fault-based and “no-fault” grounds. The fault-based grounds include desertion (actual or “constructive”), adultery, desertion (actual or “constructive”), and felony conviction and confinement in excess of one year. 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 … Read More »
Residing With Your Spouse During Separation
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 »
Can I Sign a “Pre-Nup” After Marriage?
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 »
Negotiating a Settlement in Your Virginia Divorce
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 »
Communication of a Child’s Preference in Virginia Custody Cases
One question that often arises in Virginia custody cases is whether a child can simply tell the judge that he or she wants to live with one parent or the other. The answer to that question is: maybe.
Virginia Code § 20-124.3 lists the factors that courts must consider in determining child custody and visitation in Virginia. One factor listed is “the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.”
The Code does not provide a set minimum age where a child is deemed able to express their preference. Instead, courts are left to decide on a case-by-case basis whether to consider the child’s preference, based on the individual child’s age and maturity level.
And, there is no precise age at which a child’s preference is controlling. § 20-124.3 lists a child’s preference as … Read More »
Is Marriage Right for You?
Weighing the Legal Benefits of Marriage vs. Long-Term Cohabitation in Virginia
With same-sex marriage now legal in Virginia, it would seem that marriage would be on the rise. However, a Parents magazine article reports a trend among millennial couples to forego marriage for a number of practical reasons, including financial, personal preference, and the fear of divorce.
As a family law attorney, this trend concerns me. The laws of most states and the federal government allow certain protections and benefits to married couples. Those things that the LGBT community fought so hard for are being dismissed by many millennials as “unnecessary.” The Parents article does not warn of the legal risks that accompany maintaining long-term cohabitation relationships without entering into marriage, and it is important to consider all the risks and benefits of marriage before you make the decision to forego getting married.
One of the … Read More »
