The Livesay & Myers, P.C. Blog
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.
As stated in our Guide to Child Support in Virginia, Virginia has different child support guidelines for sole, split and shared custody arrangements. Each guideline is different and takes into … 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 »
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 »
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 »
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 »
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 »
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 »
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 »
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 »
In many divorce cases, the most valuable asset to be divided is a pension. Pensions, or “defined benefit plans,” pay retirees a specified recurring benefit upon retirement that the retiree receives for life. Examples of defined benefit plans are the Federal Employees Retirement System (FERS), Virginia Retirement System (VRS), and military retirement benefits. Two main characteristics of pensions make them so valuable: first, the payments received can add up to hundreds of thousands of dollars throughout the life of the retiree; and second, the pension pays its benefits in regular (usually monthly) intervals, creating a guaranteed stream of income for the recipient.
Another feature of defined benefit plans is that they only provide the benefit to the retiree—when the retiree passes away, all benefits cease. This is generally of no concern to a retiree in a divorce proceeding. But a former spouse could … Read More »