Navigating The Fairfax County Courts

Posted on January 29th, 2013, by Matthew Smith in Custody, Divorce, Family Law. 1 Comment

If you have a hearing or trial scheduled in Fairfax County, the Fairfax County Courthouse (called the “Jennings Judicial Center”) may at first seem overwhelming. The busiest courthouse in the Commonwealth of Virginia sees approximately 20,000 people enter on a weekly basis, and the enormous, $120 million expansion, which was completed in 2008, only adds to the potential for intimidation.

When arriving, it’s important to note that the public parking garage is a 5-10 minute walk to the main entrance. Long lines will often develop at the security checkpoint that everyone must traverse, so be sure to arrive early. An information desk is available past the security area to provide further assistance.

For cases in family law, which is my area of practice, the Circuit Courtrooms are located on the fourth and fifth floors, and the Juvenile and Domestic Relations (JDR) Courtrooms … Read More »

The Power Of The Property Settlement Agreement

Posted on December 28th, 2012, by Livesay & Myers, P.C. in Divorce, Family Law. Comments Off on The Power Of The Property Settlement Agreement

Beginning the divorce process is chaotic, emotional, and often times overwhelming. Many people believe that coming to an agreement as fast as possible is the best resolution. People research online and find phrases such as “Property Settlement Agreements” or “Marital Settlement Agreements” and conclude that such a document will solve their problems.

In trying to reach such an agreement, many people take it upon themselves to negotiate and sign documents without the assistance of counsel. For many reasons signing any agreement or contract without having an attorney review it is a poor decision. You know your life and marriage better than anyone else, but unless you are a family law attorney it is unlikely that you know the potential ramifications and pitfalls of signing a Property Settlement Agreement.

Here is an example to illustrate the power of a Property Settlement Agreement. Assume … Read More »

What Will Your Divorce Mean For Your Marital Home?

Posted on December 26th, 2012, by Livesay & Myers, P.C. in Divorce, Family Law. Comments Off on What Will Your Divorce Mean For Your Marital Home?

The division of marital property (property acquired during the marriage that is not separate property) can be a major hurdle in the divorce process. Examples of marital property include retirement funds, automobiles, furniture, and most notably, the marital home. The marital home is often a point of special contention. Parties fight over the marital home because they attach sentimental value to it, because they want to maintain stability for their children, and/or because of other financial considerations. For example, a party may want to hold on to the home because its current value is not necessarily indicative of its future value (assuming, as is often the case today, a bad housing market).

In the unlikely situation that your contested divorce goes all the way to an equitable distribution trial, Virginia Code Section 20-107.3 requires that the court consider a variety of … Read More »

Five Reasons To Avoid Litigating, If You Can

Posted on November 28th, 2012, by Matthew Smith in Custody, Divorce, Family Law. Comments Off on Five Reasons To Avoid Litigating, If You Can

Many clients come to me expecting the worst from their spouses during the divorce process. They talk about how their husbands or wives will never settle, how they’re out for blood, and how they’ll stop at nothing to make the process as miserable as possible for everyone involved.

As a result of this fear, whether founded or not, many people want to begin their divorce case by taking overly aggressive and unnecessary actions that tend to diminish the possibility of settlement. I think part of an attorney’s job is to dissuade clients from embarking down that road unless it’s necessary to do so.

That’s not to say that anyone should roll over. There are clearly cases where the parties are playing a zero-sum game, and there are certainly parties to a divorce (and even family lawyers, unfortunately) who have no interest in … Read More »

The Presumption Of Marital Debt In Virginia Divorce

Posted on November 7th, 2012, by James Livesay in Divorce, Family Law. Comments Off on The Presumption Of Marital Debt In Virginia Divorce

If your spouse was a reckless spender during your marriage, and you thought divorce would finally end the financial pillage of your hard-earned dollars and the unspeakable terrorizing of your credit score—think again. Effective July 2011, all debt incurred by either party after the date of marriage and before the date of separation is presumed to be marital. But, you protest, she signed up for that Macy’s card alone and I haven’t seen one thing in the house from Macy’s! According to the amended Virginia Code Section 20-107.3(A), if you believe a debt incurred during the marriage is separate, you have to prove it, regardless of whose name was on the account.

It was not always this way. In April 2010, in the case of Gilliam v. McGrady, the Virginia Supreme Court stated that debts jointly incurred during the marriage are … Read More »

You’re Separating—So What Now?

Posted on October 24th, 2012, by Matthew Smith in Divorce, Family Law. Comments Off on You’re Separating—So What Now?

A while back I wrote a blog piece about establishing a date of separation in your divorce process, and why it’s so important once you have made the decision to move on. Let’s take things a step further. Now that you are in the process of separating, what do you need to know to protect your interests and prepare for the road ahead?

First of all, assess the character and personality of your spouse. How will he or she react to the separation? Is there a chance of spiteful financial retribution? Is there a fear of negligent financial mismanagement? You’ll want to look at how many joint financial accounts (checking, savings, money market, etc.) and joint credit cards are currently open, and consider separating those assets and debts to limit your liability. Many people have fallen victim to a post-separation “race … Read More »

Residency Requirements For Virginia Divorce

Posted on October 15th, 2012, by James Livesay in Divorce, Family Law. Comments Off on Residency Requirements For Virginia Divorce

You and your spouse were married in Hawaii. You resided as a married couple in Virginia for many years. Discord arose and now you have been separated for over a year. One month ago, your soon-to-be ex moved to sunny Southern California, while you remained in Virginia. You are ready to move on and want to begin divorce proceedings, where do you file?

Determining where to file your divorce is a question of jurisdiction. A court must have jurisdiction over your case before it can grant your divorce, and each state has specific requirements for jurisdiction. In order to file in Virginia, at least one of the parties must meet the residency requirements of Virginia Code Section 20-97. That section states in part that “no suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties … Read More »

Redefining Cohabitation In Virginia

Posted on October 3rd, 2012, by Livesay & Myers, P.C. in Divorce, Family Law. 2 comments

The Virginia Court of Appeals has taken a major step in redefining cohabitation “in a relationship analogous to a marriage” under Virginia Code 20-109(A).

Virginia Code 20-109(A) provides for termination of spousal support “upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more.” That Code provision directs courts to terminate spousal support “unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable.”

Clients frequently ask what “cohabiting with another person in a relationship analogous to a marriage” means, and how to either avoid such a situation or prove that one exists. Virginia Code 20-109(A) does not provide a definition, so attorneys are left answering … Read More »

Understanding What Your Family Lawyer Can – And Can’t – Do For You

Posted on October 1st, 2012, by Matthew Smith in Custody, Divorce, Family Law. Comments Off on Understanding What Your Family Lawyer Can – And Can’t – Do For You

When potential clients come in to meet with me, they’re often experiencing a crisis in their lives unlike any other. Many people have expectations about the legal system and their lawyer’s role in healing the wounds of their divorce or custody dispute.

So what can the divorce or custody process do for you and what can’t it do? As you get started, where should your focus be?

Let’s begin with what the judicial process generally can’t do. Unfortunately, if you have been suffering through a difficult time, the legal process will never make you whole again. The judge won’t declare your husband to be a bad person or force a public apology from him. Typically, you will not get the opportunity to convince the judge and your wife’s attorney that you are in a morally superior position. We can’t force your husband … Read More »

Property Settlement Agreements In Virginia

Posted on September 4th, 2012, by James Livesay in Divorce, Family Law. 1 Comment

Marital Settlement or Property Settlement Agreements are contracts which can settle by agreement all of the rights, interests, and obligations of separating or divorcing parties, and can also resolve all claims or demands each might have against the other. A Settlement Agreement lays the foundation for a couple to proceed with an uncontested divorce. And, where the parties have no minor children, an executed Settlement Agreement shortens the separation period necessary before filing for divorce in Virginia from 12 months to only 6 months.

The typical Property Settlement Agreement covers division of assets, division of debts, and spousal support, as well as child custody, visitation and child support, if applicable. Full and comprehensive agreements can remove the need for expensive and time-consuming litigation. Settlement Agreements also afford the parties greater control over the results of the termination of their marriage, instead … Read More »

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