What rights do fathers have in child custody?

Father's Day is approaching and so we turn to the dads.  I was surprised to see a story from the Associate Press out of Ohio a few weeks ago about how dads aren't getting fair consideration in custody matters. Virginia, thankfully, seems different.  Our courts seem to really focus on the best interests of the child (as the statute requires) and not on any predisposition of whether a mother or father should have custody (in same sex relationships, we may have two mothers or two fathers).  What does that mean?  It means that custody is determined after considering the following that is focused on the child: age and physical/mental health of each child and parent; developmental needs of the child; the relationship existing between each parent and each child; each parent's ability to accurately assess and meet the emotional, intellectual and physical needs of the child; the needs of the child including other important relationships of the child such as siblings and extended family; the role that each parent has played and will play in the future in the upbringing and care of the child; the propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child; the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.  Preference of the is one factor among these many if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;any history of family abuse; and any such other factors as the court deems necessary and proper to the determination. 

How do settlement negotiations work in a divorce?

Some people want to reach agreed upon terms of custody, visitation, child support, spousal support and property division. It is a good approach that can allow parties to reach terms that work for them specifically. It can be a way to seek to maintain a respectful relationship particularly when children are involved.  Here are some things you should keep in mind:

1.  Negotiating an agreement requires cooperation on both a sides; and there needs to be a level of understanding and knowledge from both parties on the terms involved.
2.  Negotiating can include multiple steps that in which each party may be asked to participate at various times. These steps include but may not be limited to the following
3.  Collecting/exchanging information such as tax returns, paystubs, retirement information, bank statements, investment statements, IRA statements, mortgage statements, credit card statements, etc. is an important stage to help the attorney understand the marital estate, income for support purposes, etc.
4.  In negotiations, formal discovery through subpoenas and court mechanisms is not available where litigation has not been started. The attorneys have to rely on the parties for this information. This stage can take time depending on how much information one spouse has and how much information has to be gathered from the other spouse. Depending on the responsiveness of the other spouse, this stage can take several weeks.
5.  In addition to documentary information, clients are asked to consider what they want so that the attorney can draft a proposal.
6. After a proposal is put together that a client feels comfortable making, it is sent to the other party or counsel if the party is represented. They have the opportunity to review the proposal and then they may decide to make a counterproposal.
7.  There is no required time frame by which a response must be provided in negotiations; and there is no penalty per se for the other spouse not responding.
8.  When a response is received, the client then has the opportunity to review it and determine if and how he or she will respond.
9.  How many counterproposals may be made and/or received cannot be predicted at the outset of a case. Each round of a proposal/counterproposal can take different amounts of time.
10.  If an agreement is reached and fully executed, then at the statutory permitted time, unless otherwise agreed to, one party can begin the process to finalize the divorce. A divorce is not final upon execution of an agreement.
Negotiations are a good approach to a separation/divorce. It is important during the process to remember, however, that the myths associated with negotiations, i.e it is a quick resolution and/or a cheap resolution, may not be true. Each case is different with respect to how long it will take to reach an agreement or whether an agreement will be reached at all and what the fees/costs may be. We work with our clients to try to achieve their objectives based on the information we are provided in a prompt and timely manner.

Who should be part of my divorce team?

Having a group of people and professionals to assist you through the process of a divorce is important.  In addition to your legal team, you want to consider the benefits of a tax attorney, financial planner, accountant, therapist, real estate attorney, business attorney, wills and trust attorney as well as friends and family.  Each professional brings an area of knowledge that may be able to help when putting all the pieces together.

Speaker Series announced for Fall/Winter 2015

It has been a pleasure to bring you a monthly speakers series on topics of interest in family law, elder law or life in general.  We are excited to share our line up for the rest of 2015 (note: we are not having workshops in the summer to allow folks to travel, etc).

Sept. 16:  Caring for Mom & Dad - practical and legal considerations.
Oct. 14:  Parenting Schedules
Nov. 11:  Healthcare Issues for Seniors
Dec. 9:  College Financial Aid

Please join us at 7:30 a.m. for coffee followed by our presentation at 8:00 a.m.  12090 West Broad Street, Richmond VA.

I'm scared of my spouse. Can I get a protective order?

 In Virginia, if you are scared that your spouse may harm you, you can seek a family abuse protective order.  There are three kinds of family abuse protective orders: emergency, preliminary, and permanent.

    Emergency Protective Orders
    An emergency protective order may be granted by a circuit court, general district court, juvenile and domestic relations district court, or magistrate.  If the courts are closed on a day that you seek a protective order, you can still seek a protective order from a magistrate’s office.  Generally, the court may issue a protective order if the court finds that "(i) a warrant for a violation of 18.2-57.2has been issued and there is probable danger of further acts of family abuseagainst a family or household member by the respondent or (ii) reasonable grounds exist to believe that the respondent has committed family abuse and there is probable danger of a further such offense against a family orhousehold member by the respondent."

Family abuse means “any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury” that is committed by your husband.  Therefore, you do not have to wait until you are actually injured to seek a protective order.  If you can show that your husband’s actions involving violence, force, or threat caused you to reasonably believe you would be physically injured, sexually assaulted, or killed, you can seek a protective order.

  Generally, an emergency protective order lasts until 11:59 p.m. on the third day following its issuance.

    Preliminary Protective Order
    A preliminary protective order may be requested from a juvenile and domestic relations district court.  A preliminary protective order may be issued upon a showing that you are, or have been, within a reasonable period of time, subjected to family abuse, as defined above.  Generally, a preliminary protective order lasts for up to 15 days.  A hearing will be set within 15 days of issuance of the preliminary protective order to determine whether a permanent protective order is necessary.  To request a preliminary protective order against your spouse, you should go to the juvenile and domestic relations district court and fill out the appropriate forms. 

    Permanent Protective Order
    The determination of whether a permanent protective order shall be issued is made at the hearing set by the court within 15 days of issuance of the preliminary protective order.  The permanent protective order can last for up to 2 years.  At the end of the initial term of the protective order, you can petition for a renewal of the order. 

http://www.courts.state.va.us/forms/district/info_sheet_protective_order_stalking.pdf

By Kari Jackson, Associate at Hall & Hall, PLC
   

   

   

Why do I need an expert to get my spouses' business valued for a divorce?

    When faced with divorce, one component that you must think about is the division of marital assets.  Virginia is an equitable distribution state, which means that the courts will divide and award assets between the parties in a way that is “equitable.”  When determining what division of assets would be equitable in a given case, Virginia law requires the court to determine the legal title as between the parties, and the ownership and value of all property.  A marital business interest held by either you or your spouse is considered an asset, and therefore, will be subject to valuation.  

    When divorcing parties are business owners, equitable distribution becomes much more complex. Unlike many other assets, the valuation of a business is complicated and requires the help of a financial expert/forensic accountant to get an accurate assessment of the business’ value.  In addition to valuing the business, a forensic accountant can be helpful in determining the income of a spouse who is an owner and/or owner of the company.
   
    Often, starting and running a business requires a significant commitment of marital and/or separate capital.  The business may provide a significant source of income upon which you and your spouse have relied upon for years.  In order to aid in the division of assets, an accurate valuation of the business and determination of income is an important part of the rights that you may seek to protect.

By Kari Jackson, Associate at Hall & Hall

Can my spouse get any money that I had before our marriage?

    In a divorce proceeding, the determination of who gets what property is, in part, dictated by how the property is classified.  Virginia law makes a distinction between separate property and marital property.

    Generally speaking, all real and personal property acquired by either party prior to marriage is presumed to be separate property, and thus not subject to division between the parties.  For example, if a party had $30,000.00 in a separate bank account on the date of marriage, and that $30,000.00 remained in that separate account throughout the marriage, that party would be entitled to receive the $30,000.00 in its entirety upon divorce.

    However, this rule is not without its exceptions.  Separate property can lose its separate quality if it is commingled with marital property, such that it becomes transmuted (is considered to have transformed) to marital property.  If separate property is found to have been commingled to such an extent as it becomes transformed, it is deemed marital and subject to division by the parties.

    BUT, there is still a way to try to get that separate property back.  If the separate property can be traced out such that its separate quality can be demonstrated, the property may retain its separate quality.  Providing proof of the tracing is important and the burdne is high; documents that detail transactions are a crucial part to seek having separate property “backed out.”

    In addition to an experienced attorney helping with a tracing issue, it may be necessary to have the help of a forensic account as well.

- By Kari Jackson, Associate at Hall and Hall

What should I do if I'm served with a complaint for divorce?

If you are served with a complaint for divorce, you should see an attorney.  An attorney can help protect your rights, fight for your wishes, and help guide you through the divorce process. An attorney can help you file responsive pleadings, get the most out of your discovery requests, and strategize about the best approach for your individual needs.

    In Virginia, you have a limited time  from the date you are served with the complaint to file your responsive pleadings.  Although you do not have to file a responsive pleading, i.e. an Answer or Counterclaim, to a complaint for divorce, it is often beneicial to do so in order to preserve your rights. Some of the scenarios in which you may need to file a responsive pleading are if: (1) there are minor children born of the marriage and their custody, visitation, or support is in dispute; (2) there are marital assets or debts that need to be divided; (3) you wish to ask for spousal support; and/or (4) your spouse has filed for divorce on a fault ground.

    Additionally, if you believe that there will be a dispute over the division of assets, you may want to begin gathering financial documents once you receive the complaint for divorce. Keep these documents in a safe place that is accessible only by you. These financial documents will be useful in helping you and/or your attorney determine what marital assets exist. -- By Kari Jackson, Associate at Hall & Hall

How long will it take before I'm divorced?

If you have filed for a divorce in Circuit Court and are unable to resolve disputes related to support, custody, property division, etc., you need to be prepared for a process that can take a minimum of 18-24 months.  Sounds like forever?  We know.  Unfortunately, it takes time to file and respond to pleadings, to gather information, to prepare for trial, to meet requirements of Court pretrial orders, to present your case, and to argue post-hearing motions.  And, if your spouse is difficult in providing information, then it can take longer.  Not what you want to hear when you are already anxious about getting thing over with.   So, try to think of the turtle. If you ever have the privilege of touring the United States Supreme Court, you will notice turtles everywhere (statutes, not real ones)-- they are there to represent the slow and deliberate pace of justice.

What happens if my spouse quits his job to avoid paying support?

 The court can consider not only the income that the paying parent actually receives, but the earning capacity of each parent as well in determining the amount of child support owed. If a parent is voluntarily unemployed or underemployed, the court has the power to impute income to that parent to calculate the child support owed. Voluntary underemployment could occur when a parent chooses to earn less income than they were previously earning or could earn. Voluntary unemployment could occur when a parent chooses not to pursue employment when they are able to work. -- By Heather Wheelock Winter, Associate at Hall & Hall

What do I need to do with my custody order if I moved to Virginia from another state?

Your child custody order from another state will be recognized in Virginia and the custody and visitation provisions can be enforced across state lines. To enforce or modify the child custody order, a parent should register the out-of-state order. To register the child custody order, a parent should contact the appropriate juvenile and domestic relations district court in Virginia with a request for registration and copies of the order. It is also possible to ask for expedited enforcement and temporary visitation in certain situations. Handling custody and visitation matters when parents live in different states or have a previous order from another state are complicated and it is advisable to seek the advice of an experienced attorney. -- By Heather Wheelock Winter, Associate at Hall & Hall

Parental rights and assisted conception: an interesting news story

In a recent case, the Virginia Court of Appeals affirmed the parental rights of a man whose son was conceived by using a turkey baster, finding that a turkey baser does not qualify as “medical technology” and therefore the assisted conception statute does not apply.

The Virginia assisted conception statute defines an “assisted conception” as:
    a pregnancy resulting from any intervening medical technology, whether in vivo or in vitro, which completely or partially replaces sexual intercourse as the means of conception. Such intervening medical technology includes, but is not limited to, conventional medical and surgical treatment as well as noncoital reproductive technology such as artificial insemination by donor, cryopreservation of gametes and embryos, in vitro fertilization, uterine embryo lavage, embryo transfer, gamete intrafallopian tube transfer, and low tubal ovum transfer.

Virginia Code § 20-158(A)(3) states that in an assisted conception scenario, a donor is “not the parent of a child conceived through assisted conception, unless the donor is the husband of the gestational mother.”

See the full article published by the Associated Press at:

http://www.roanoke.com/news/virginia/virginia-court-affirms-roanoke-dad-s-rights-in-turkey-baster/article_bbfeef9a-80b4-5406-a8e1-d6352883d5ad.html.

By Kari Jackson, Associate at Hall & Hall, PLC

Can I Terminate Spousal Support Based on My Ex-Spouse’s Living in a Same Sex Relationship?

Same-sex marriages that are valid under the law of any state are now recognized in Virginia and same-sex couples may now legally marry in Virginia. However, that recognition does not necessarily apply in all areas of family law.  In a recent Virginia Court of Appeals case, Luttrell v. Cucco (unpublished), an ex-husband tried to terminate his spousal support obligation to his former wife based on her cohabitation with another woman. Virginia law allows termination of spousal support when the spouse receiving the support has been “habitually cohabiting with another person in a relationship analogous to marriage.” Although Virginia now recognizes same-sex marriages, the prior case law defines “cohabiting” as between a man and woman. The Virginia Court of Appeals upheld the trial court’s ruling that same-sex couples cannot cohabit under the meaning of the termination of spousal support statute.   The Court went on to say that because the General Assembly has not addressed or altered the case law, the Court of Appeals was stuck with case law defining cohabitation as between a man and a woman who live together assuming duties normally associated with a marital relationship. This is an interesting example of where the law has not caught up with itself. -- By Heather Wheelock Winter, Associate at Hall & Hall

What do i need to do with my child support order if I moved to Virginia from another state?

Virginia will recognize your child support order from another state and can help collect support from a non-paying parent. A parent who has a child support award from another state who wants to enforce the order or modify the child support amount in Virginia should request to register the order in the proper juvenile and domestic relations district court, circuit court, or the Department of Social Services. The parent will need to fill out a standard form, certify the amount of back child support owed, if any, and provide various copies of the child support order. The parent who wants to enforce the child support order may also choose to have payments made to a state support enforcement agency, such as the Department of Child Support Enforcement. If the paying parent has moved away from Virginia, it may be necessary to seek a modification of the child support order in a different state. Because the process of registering, enforcing, and modifying an out of state child support order can be complicated and confusing, it is advisable to seek the advice of an experienced attorney. -- By Heather Wheelock Winter, Associate at Hall & Hall.

I want to retire; can I terminate my spousal support?

A paying spouse may be able to terminate or modify spousal support upon their retirement; it depends. Generally, unless the spousal support order or agreement says otherwise, to terminate or modify the spousal support award, the paying spouse must show (1) a material change of circumstances and (2) that the change justifies altering the amount of spousal support. It is possible that retirement may be a material change in circumstances; but the Court will want to know why is that person retiring at the specific time, how old is the person seeking to retire, does the payor have the ability to work, is retirement a voluntary choice. To justify terminating or modifying spousal support, the court would then look at the financial circumstances of both spouses, including each person’s earning potential. The court would also analyze certain factors like the parties’ assets, age, physical and mental health, and the length of the marriage. Although retirement may be a material change in circumstances, it is not always true that the retiring spouse is not able to pay spousal support post-retirement and the retiring spouse may or may not get relief from spousal support. These decisions are fact specific and it is important to discuss your situation with an attorney when you are considering retiring. -- By Heather Wheelock Winter, Associate at Hall & Hall.

Do I get credit for paying health insurance premiums in child support?

 Effective July 1, 2015, the law better clarifies how health insurance cost will be calculated for child support purposes.  When determining the amount of child support owed by a parent, the court takes into account the amount paid by either parent or stepparent to provide health care coverage for the child.  The amount taken into account is limited to the proportionate share for the child’s health coverage.  With more blended families in Virginia, it was important to better articulate how credit may be given where children other than those for whom support is owed are also covered by the health insurance.  The new law provides that the cost per person shall be determined by the following formula: [total cost of coverage] – [cost of individual coverage for policy holder] / [number of remaining persons covered by the policy]. -- Kari Jackson, Associate at Hall & Hall

Can I get child support for a child who is over 18?

Effective July 1, 2015, the law in Virginia will change to expand the ability of the parent of a child who is severely and permanently mentally or physically disabled may file for child support.  Specifically, this legislation will allow the parent of a child who meets certain statutory requirements to file for child support even after the child has reached the age of 18 even if there is no existing child support order, so long as the permanent mental or physical disability existed prior to the child turning 18.  This is a change from the current law, which requires a parent of a mentally or physically disabled child to file for support and obtain a court order prior to the child reaching the age of 18.-- Kari Jackson, Associate at Hall & Hall

Are there any ways to share information about our children with my ex-spouse?

    Oftentimes, parents who have difficulty in their own relationship with each other may find it hard to communicate with each other about their child(ren). Parents can consider attending co-parenting classes together or co-parenting counseling. They can also consider using a program such as Family Wizard to organize their child(ren)’s schedule and records, to help communicate, to track expenses for the children, and to assist in work being done with other professionals.  Technology can some times help alleviate conflict so that parents can focus on their children and their parenting responsibilities. -- Heather Winter, Associate at Hall & Hall

How much alimony can I get?

Check out our article in Richmond Family Magazine on how alimony works:  
http://richmondfamilymagazine.com/rfm-community/66253/

What do I do if my spouse or the other parent is late in bringing back the children from visitation?

It's snow day # (I've lost count) in Henrico County and it made me think of this issue that we often see.  Your agreement or court order may or  may not provide a time when an exchange of children is to occur.  If it provides a specific time, we often receive inquires related to the other parent being late.  These inquires range from what to do if the parent is 10-15 minutes late to what to do if the parent is 30 minutes late, and beyond.  I thought of this question today, on snow day # (I've lost count).  During times of bad weather, parents may not be able to return a child as scheduled.  Could this be considered a violation of a court order?  Maybe yes; and maybe no. Yes, parents should follow court orders.  However, Courts may consider the circumstances of the lateness or non-return, if they are unusual.  Is it habitual?  Is it intentional? Or is it related to an event that is outside the control of the other parent (snow, accident, etc.).  Use good judgment in how you respond as the parent expecting the child to be returned.  If driving in bad weather just to get a child back by a specific time may put your child in danger, remember that the best interest of the child is paramount.  If you are supposed to deliver the child to the other parent, and you cannot do so as scheduled due to bad weather for example, be respectful in communicating with the other parent and think about how to make accommodations for the lost time of the other parent where it is no one's fault. 

How do I stay organized as a single parent, co-parent, working parent, or any parent?

This is going to be a great program!

How Can I Get Custody of My Children?

Under Section 20-124.3, the Courts must consider certain factors in determining best interests of a child for purposes of determining custody or visitation arrangements:
1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. 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;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

Factors 6 and 7 are more important than many people realize.  In separation and divorce situations, animosity is common.  Lack of trust, hurt feelings, resentment are also common.  These emotions between two adults can easily spill over into when those two adults must co-parent.  If these emotions are not controlled in the co-parenting context, the ability for those parents to do what is necessary under Factors 6 and 7 is jeopardized and the ability to obtain the custody that parent seeks also suffers. Some people can distinguish between adult issues and custody issues; some people benefit from co-parenting counseling to help navigate through having to work with a person who triggers the emotions above.  The other factors are important and will be considered as well; but where 6 and 7 require the ongoing relationship between two people who no longer want a relationship, it presents a bigger challenge that must be addressed.

When can my child say who he or she wants to live with?

In Virginia, the determination of physical custody is made by a Court after considering a number of factors that are set forth in Section 20-124.3 of the Virginia Code.  One factor 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."  There are important components of this factor.  First, a child's preference is not the sole determining factor; it is one to be considered along with the other factors set forth in the Code.  Second, there is no specific age that governs when a child can express a preference; a 16 year old child who does not have the appropriate intelligence, understanding, maturity may not be able to express his or her preference and a 12 year old who is mature, intelligent and demonstrates understanding may be able to express a preference.  Third, in many cases, the child does not come to Court to talk to the judge.  Although there are provisions that allow for that mechanism, many times a Court will appoint a Guardian Ad Litem who is an attorney to represent the child and who presents the child's case to the Court through evidence as part of the custody determination.  Although parents may feel like their children should be able to have a say in where they live, the Courts must consider the best interest of the child based on all of the information, which may or may not include what the child wants and who the child wants to live with.

Can I date during my separation from my spouse?

We are approaching Valentine's Day and it reminds me of the question we are so often asked.  Can I date?  When can I date?  If you and your spouse have a signed agreement that resolves all of your monetary issues, your child custody issues, your property issues and support issues, then it may also state that you are free to live your lives separately from each other and you may be able to start dating.   You need to check those provisions closely and even consult with your attorney.

If, on the other hand, you have outstanding issues or if you are in litigation, dating is not advisable.  Virginia still recognizes post-separation adultery which can impact your support rights, your property rights and your custody objectives.  Even if a dating relationship has not become sexual and does not meet the criteria for post-separation adultery, it can still impact you in many ways including custody.  Therefore, until you have a final decree of divorce, you may want to wait before you start dating. It's the philosophy of better safe, than sorry.

What new laws in Virginia might affect me if I am separating or divorcing?

The General Assembly is heading toward its cross over, the time when bills from the Senate go to the House and vice versa.  This year in the family law arena there is some legislation that may impact families.  We are keeping our eye on these bills so that we can provide family law clients with updated services based on any new laws that may take effect.  If you are interested in following the General Assembly, check out http://virginiageneralassembly.gov

Can I claim the children for taxes if I'm separated or divorced?

**THIS IS A REPOST OF A BLOG IN DECEMBER 2014:
Here are some pointers that you may want to discuss with your lawyer and/or your accountant when separating from your spouse or getting a divorce.

1)    Your filing status is based on your marital status as of December 31.  Should you file your taxes based on  married filing single? Head of household? Filing jointly?  Is it beneficial to delay the entry of the divorce decree if you are close to the end of the year?
2)    In order to file as head of household if you are still married,  do you meet all of the requirements including length of separation?
3)    Who gets to claim the tax dependency exemption for a child if not specified in an Agreement or Order?   Do not assume that it is based on who pays the most in child support.  Be sure that you talk to your accountant/tax attorney about this and understand all of the nuances.
4)    Who gets the child care credit?  Again, do not assume that it is based on who pays the most in child support.  Do you have to be claiming the tax dependency exemption for this credit to apply?
5)  What tax issues can you and your spouse agree on and the tax people will honor?  Are there things that you are not allowed to make agreements on?  What forms might you have to complete to carry out agreements?
6)  How does filing status affect deductions or inclusions of spousal support payments?
7)  How should refunds or liabilities be apportioned?
These are just some of the questions that you should be considering as the year comes to an end and tax forms begin to appear in January.

Also, be sure to attend our free workshop on February 18, 2015 featuring a presentation by Cathy Stemple and Katherine Hoffmann from Biegler & Associates.  Contact smcfadden@hallandhallfamilylaw.com if you are interested.

What are some tips to protect my finances during a divorce

Check out this article from Market Watch.  And, be sure to attend our speaker series on February 18 featuring Cathy Stemple from the accounting firm of Biegler and Associates on tax issues in divorce matters.  http://www.marketwatch.com/story/divorce-the-6-worst-money-mistakes-2014-09-23?page=2

International child abduction law updates

Our colleagues in Northern Virginia have posted a great update on the law pertaining to international child custody issues.  Check it out.http://www.fairfaxvafamilylawblog.com/2014/11/good-news-re-international-custody-abduction-preventative-measures.shtml

Can I move out of state with my children?

We move for many reasons during our lives:  new jobs, new marriages, better schools, to be closer to aging parents.  When one parent from a divorced family where children are involved wants to move, there will likely be a need to revisit the custody/visitation arrangement.  Moves that affect where the children attend school, that affect the distance and travel time between parents, that affect the ability for one parent to see the children and be part of their lives are challenging.  In Virginia, if there is a court order for custody, the law requires a 30 day written notice of a parent's intent to move.  If the parents cannot determine a new custody/visitation arrangement (which needs to be incorporated into a court order), then the Courts will make a determination.  Determinations are based on the children's best interests which may or may not be the same as the moving parent's best interests.  The impact on the parental relationships that result from a move are closely examined. Whether the move is necessary or just desired is scrutinized.  What the children's lives may look like after a move and how they will spend time with the non-moving parent will be considered.  There is not any one answer to the question of whether a parent will be allowed to move a child out of state; it depends.  The cases about relocation are varied and the decisions are fact specific.  It is important if you are considering a move in the future that you start talking to a family law attorney in advance.

What is the difference between legal child custody and physical child custody?

Many times we have a consultation with a parent who says, "I want sole custody."  What that means depends on the parent, but often they are referencing the time the child physically spends with each parent.  It is important to understand that in Virginia there are two general categories of custody.

 Legal Custody:
Legal custody is the right to make important decisions on the child’s behalf such as medical decisions and decisions about their schooling and education.  Legal custody is not the every day decisions like what the child eats or what time they go to bed. Parents can have joint legal custody or one parent may have sole legal custody.  Keep in mind that under Virginia law just because one parent may have sole legal custody, access to information and records by the other parent is still permitted.  Under Section 20-124.6, "Notwithstanding any other provision of law, neither parent, regardless of whether such parent has custody, shall be denied access to the academic or health records of that parent's minor child unless otherwise ordered by the court for good cause shown or pursuant to subsection B."

Physical Custody:
Physical custody is a determination of where the child will live and with whom.  The three basic types of physical custody are sole/primary custody, shared, or split custody.  Sole or primary custody is when one party has the child for a large majority of the time and the other party has the child for visitation.  Shared custody is where the parents or guardians of a child share custody of the child based on a schedule where the child spends time with both parties (keep in mind it may or may not be 50/50 but it is more than every other weekend).  Split custody is where there are multiple children from two parents and one child may spend time with mom while the other child spends time with dad.

When considering custody, it is important to focus on the substantive meanings and not just the labels as that will better help you get to a scenario that works for your children.   How does the child's schedule impact the physical schedule?  How does each parent's work schedule impact the child's physical schedule?  What is each parent's proximity to the other?   Section 20-124.3 of the Virginia Code outlines all of the factors that a court is required to consider.  There is no set way of dealing with physical custody; each family is unique and a schedule should be formulated to meet that family's need and the child's best interest, which is paramount.

How Can I Co-Parent with My Ex-spouse?

1.   Remember your children are a combination of both parents.

2.  Be respectful of each other, even if you disagree with each other.

3.  Share information with the other parent, especially what is going on at school or at doctor visits as well as general developments in your children's lives.

4.  Create a shared calendar online so that important information is accessible.

5.  Try to make decisions together about your children.

6.  Come up with common rules and expectations so that your kids cannot play off each of you.

7.  Go to activities, events, school programs.  Even if you don't sit together, both of you being there is important to your children.

8.  Support your children's love of the other parent.

9.  Seek co-parenting counseling.

10.  Understand your rights and your obligations as a parent and your role with your child and with the other parent.  Understand all dispute resolution options so you make an informed decision about how you may seek to reach a determination on parenting decisions that the two of you cannot decide on your own.

Can my spouse get my inheritance in a divorce?

In a divorce proceeding, Virginia divides assets and liabilities (property) using the concept of equitable distribution.  The first step in that process is to classify the assets as either marital, separate or hybrid (part-marital/part-separate).   An inheritance usually starts out as separate property under the definition laid out in Section 20-107.3:  Separate property includes all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party.  Then, any property acquired during the marriage in exchange for or from the proceeds of the sale of separate property remains separate property, provided that such property acquired during the marriage is maintained as separate property.  Also, "income received from separate property during the marriage is separate property if not attributable to the personal effort of either party. The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions."

Some times, however, we see situations where, during the marriage when there are no signs of trouble, inherited funds are put into joint bank accounts/investment accounts, used to buy jointly titled vacation properties, pay down a jointly titled home, etc.   If inherited money is commingled, it can lead to reclassification of the separate property as marital property and can lead to the other spouse making a claim to that inheritance.  The spouse having received the inheritance is then left with the need to prove that the commingled property can be traced to a separate asset in order to retain its original classification and eliminate the spouse's ability to seek a portion of it.  This is a document intensive process and depending on how far back the inheritance was received and whether records were kept it may or may not be successful.  

There are many provisions in the Virginia Code that outline what needs to be done to preserve the treatment of an inheritance as separate property.  Some parties seek prenuptial agreements in order to try to head off claims to inheritances; other parties make sure to keep inherited funds completely separate and not retitled to joint assets.   Talking to a family law attorney can help you understand your rights and how to protect your inheritance for your future.

What happens to my assets if I die during a marital separation?

In Virginia, parties are considered to be separated when they no longer live together as husband and wife and when there is no possibility of reconciliation and one party has the intent to separate.   Separation is not a divorce; a divorce occurs upon court order.  So, what happens if a spouse dies while the parties are separated but not divorced?  The separation itself has no effect itself on inheritance rights by the other spouse.  If you die without a will, your spouse will inherit your estate.  If you die with a will, your spouse may still be entitled to a portion of your estate (but it will be less than if you have no will at all).  A separation itself does not revoke previous wills; you need to do a new will if you intend to make changes as it relates to your spouse.  A separation itself does not necessarily revoke powers of attorney or advance medical directives; if you no longer want your spouse to have those abilities, you need to have them changed.  A separation itself does not automatically revoke beneficiary designations; you need to change them where permitted (some retirement plans and other accounts may not let you change beneficiaries without spousal approval).  Even after a divorce, do not assume that beneficiary designations are automatically revoked.  Check with each plan, policy and account to be sure you have taken all steps to protect yourself.  It is important as you proceed through a separation and divorce to also be talking to an attorney who does wills, powers of attorney, advance medical directives and estate planning to be sure you are protecting all aspects of your future.

What effect does divorce have on children?

Divorce can have a rippling effect.  Determining custody, learning how to co-parent separately are just two issues that face parents in a divorce.  To learn more about how divorce can affect children, come to this great program!http://wtvr.com/2015/01/08/divorce-the-rippling-effect-is-the-next-topic-in-the-rva-parents-forum-series/

Can I require my spouse to help pay for college for our children?

Some college decisions have started to come out; others will begin arriving as Spring approaches.  And, with those decisions, also comes discussions and decisions about how to pay for tuition, room, board, books, fees, etc.  Virginia law regarding a parent's obligation to pay for college educational expenses is generally that there is no authority to mandate a parent to pay for such expenses.  Child support ends when a child turns 18 and graduates from high school or when the child turns 19 (with some very limited exceptions).  So, what are divorced/separated parents to do?  Schools differ on how it treats income from separated/divorced parents and how it treats income if either parent has remarried  FAFSA forms may require the cooperation of parents to provide financial information.  In some cases, parents cooperate to get these matters addressed.  Other times, the emotions of the separation/divorce reappear; if there is a lack of trust between parents, it can be difficult to want to share information required by the financial entities.   So, if your child's decision for college depends on financial ability to pay, what is he or she to do if his/her parents are not willing to provide necessary information?  Your child's future is before you; it is a time to celebrate the achievements that have led to the opportunity to attend college.  Understanding the dynamics that underlie the financial issues of this exciting time, and realizing that a Court's power to assist may not exist, takes forethought.  It may take the ability to put aside old feelings and cooperate.  It may require the help of attorneys, mediators, college planning counselors, financial planners.   Plan ahead and seek out assistance if needed.

Hall and Hall is excited to host and present at the upcoming parent forum at the Children's Museum of Richmond