Three Questions You Should Ask Before Hiring a Family Lawyer

Posted on October 15th, 2013, by Matthew Smith in Custody, Divorce, Family Law. Comments Off on Three Questions You Should Ask Before Hiring a Family Lawyer

The choice of a family law attorney is always very personal. Given the subject matter, you’ll want to work with someone you can trust, who is nonjudgmental and willing to listen and learn about your circumstances. Considering what may be at stake, your choice of lawyer should be experienced, hard-working and committed, but also willing to find ways to save you money and help you move on as soon as is practical. From my experience, here are three questions that every potential client should have answered before making a significant financial commitment to a custody or divorce attorney:

Will you work as hard to settle my case as you will to try it? At first, this may seem unusual. Working hard to settle means caving in, right? Doesn’t extending an olive branch equate to surrender? Far from it. Contrary to popular … Read More »

Can Pre-Marital Conduct Be a Ground for Divorce in Virginia?

Posted on October 14th, 2013, by Livesay & Myers, P.C. in Divorce. Comments Off on Can Pre-Marital Conduct Be a Ground for Divorce in Virginia?

In a case recently reviewed by the Virginia Court of Appeals, a wife sought appeal of her divorce case because the judge refused to grant a fault-based divorce on the ground of pre-marital cruelty. The trial court in her case instead entered the divorce based on the parties’ living separately, and the Court of Appeals decided there was no error in so doing. In Virginia, if more than one ground for divorce exists, the trial judge has discretion to enter the divorce on any applicable ground. The Court of Appeals, relying on this rule, held that even if the wife had proved pre-marital cruelty, the trial judge acted properly in choosing to grant the divorce on the no-fault ground of the parties’ separation.

In the course of reaching its decision, the Court of Appeals “assum[ed] without deciding” that pre-marital cruelty is a valid ground for divorce in … Read More »

How Will That Down Payment Be Treated in Your Virginia Divorce?

Posted on September 30th, 2013, by James Livesay in Divorce, Family Law. Comments Off on How Will That Down Payment Be Treated in Your Virginia Divorce?

It is a common story. You get married. You and your new husband or wife buy a beautiful new home. Everything is grand.

But then everything, gradually, over time, becomes… less grand, downright miserable, in fact. You separate. You contemplate divorce. You visit an attorney.

The question arises: what happens to the money that you (or your spouse) used to make the down payment? What happens to that money when you divorce?

There is a general rule that applies to this scenario under Virginia law. Just as background, real estate, when purchased during the marriage, is, by default under Virginia law, marital property regardless of how the real estate is titled. That is, the real estate can be titled in both of your names or solely or in the name of one party. It makes no difference to the question of whether or … Read More »

Hearsay In Family Law

Posted on September 23rd, 2013, by Ariel Baniowski in Custody, Divorce, Family Law. Comments Off on Hearsay In Family Law

When preparing a client or witnesses for a hearing or a trial, I always find myself repeating one thing over and over – the hearsay rule! What is hearsay? Why is hearsay evidence inadmissible? Are there exceptions?

Without writing a dissertation, I will try to sum a few things up about the hearsay rule as it relates to custody, divorce and other family law cases in Virginia.

What is Hearsay?

The Supreme Court defines hearsay as “testimony given by a witness who relates, not what he knows personally, but what others have told him, or what he has heard said by others.” Cross v. Commonwealth, 195 Va. 62, 74, 77 S.E.2d 447, 453 (1953). Note that hearsay is not limited to oral statements. Hearsay includes conduct, gestures, writings, and even silence in some cases. Further note that in order for a statement to … Read More »

What Does It Mean To Dissipate Or Waste Marital Assets?

Posted on September 19th, 2013, by Livesay & Myers, P.C. in Divorce, Family Law. Comments Off on What Does It Mean To Dissipate Or Waste Marital Assets?

If you are involved in a contested divorce in the Commonwealth of Virginia, the court will eventually set a date for an equitable distribution trial. At that trial, you and your spouse will have the opportunity to present proposals to the court for distribution of the marital property and debts. Occasionally, one party in an equitable distribution hearing will allege that the other has misused or deliberately disposed of marital property to purposefully deprive the other party of his or her share. This behavior is commonly known as “marital waste” or “dissipation of assets,” and the court has authority to consider such behavior in making an equitable distribution award.

But how does the court know when marital waste was purposeful?  The general rule in Virginia, stated in Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569 (1988), is that “waste may be … Read More »

Stafford County Pendente Lite Hearings: Mediation Orientation

Posted on September 4th, 2013, by Livesay & Myers, P.C. in Divorce, Family Law. Comments Off on Stafford County Pendente Lite Hearings: Mediation Orientation

A key step in every contested divorce case in Virginia is the pendente lite hearing, where the court puts in place a number of ground rules to govern the parties until the divorce is final. “Pendente lite” is a Latin term which essentially means “pending the litigation” or in this context, “pending the final divorce.” In many cases these pendente lite ground rules include an order for temporary child and spousal support.

Each county has their own set of procedures regarding these hearings. For example, pendente lite hearings in Fairfax follow a very rigid structure, including a strictly-enforced 30 minute time limit. Stafford County also follows a schedule with most all hearings being 30 minutes, but Stafford is unique in its near universal drive to have parties attempt mediation before their temporary hearings.

The Virginia Code authorizes courts to refer any contested civil matter (such as a divorce … Read More »

Beware Of Social Media

Posted on August 5th, 2013, by Ariel Baniowski in Divorce, Family Law. Comments Off on Beware Of Social Media

I’m going to start this blog post by stating my conclusion first: Beware of Social Media!

Divorce, custody, and/or any other matters involving the breakdown of the family unit can be difficult, and you may feel the need to vent your frustrations, vent your disdain for your ex, or possibly even vent your own guilty conscience. And, with the advent of social media, you no longer need a physical person present in order to expel your frustrations; you need simply to press “send.”

Social media, including Facebook, Twitter, MySpace, and Instagram, can be both a blessing and a curse for a person going through the trauma of separation, divorce, a custody dispute, or a support matter. It is a blessing because family and friends can be “near” even when they are far in distance. However, it can be a curse because it … Read More »

The Non-Participating Spouse

Posted on June 28th, 2013, by Livesay & Myers, P.C. in Divorce, Family Law. Comments Off on The Non-Participating Spouse

Let’s suppose the marriage between you and your spouse has broken down, and you are ready to dissolve it. You and your spouse have already begun moving in separate directions. Tensions are mounting, and you’ve stopped communicating to avoid further escalation. Despite this, you’d like to resolve things through the cheapest and most efficient means, i.e. a property settlement agreement, rather than spending the time and money to litigate the issues of marital property, custody and support in court.

The catch is that your spouse won’t answer your attempts to communicate, won’t hire an attorney or regularly communicate with the attorney he or she has hired, and won’t extend the courtesy of resolving matters efficiently. What can you do?

You have options, although you’ll need to balance what you know about your spouse with your desire for resolution. You can try to … Read More »

One Perspective On The Modern Causes Of Divorce

Posted on June 18th, 2013, by Matthew Smith in Divorce. Comments Off on One Perspective On The Modern Causes Of Divorce

Seemingly every week, we hear the depressing news of another marital relationship on the rocks. Whether it involves family, friends or just celebrity gossip (this week, News Corp CEO Rupert Murdoch and his wife Wendi Deng are splitting), divorce has become an all-too-familiar part of modern American life. And although the divorce rate has dropped each decade in the past 40 years, roughly one-third of first marriages are still destined for failure (depending upon how the rate is calculated).

So what’s causing all of these divorces? I have spent my entire career in family law, and have witnessed countless ruined marriages up close and personal. Over time, I’ve been able to gain some perspective on the most common reasons for divorce. As I see it, there are four major causes, with the first one being far more important than the other … Read More »

Is An Engagement Ring Marital Property In Virginia?

Posted on May 7th, 2013, by Livesay & Myers, P.C. in Divorce, Family Law. Comments Off on Is An Engagement Ring Marital Property In Virginia?

NFL star and 2006 first overall draft pick Mario Williams has filed suit against his former fiancée seeking recovery of the 10.04 carat diamond engagement ring he gave her in February 2012. Williams claims that his ex, Erin Marzouki, never intended to marry him, and that she had promised to return the ring if the engagement ended. The two-time Pro Bowler brings this claim under the “conditional gift rule”—the idea that a gift is not truly given until something else happens.

The thinking here is that the engagement ring is given “on the condition” that the marriage occurs. If the parties marry, the gift is completed and the ring becomes the receiver’s separate property. If the parties don’t marry, at least in Texas, the court would look at the reasons why the marriage didn’t happen. In Virginia, however, the court is … Read More »

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