Hall & Hall Divorce and Custody Blog

Spousal Support

2012-03-05T09:00:00.000-05:00

Spousal support awards based on formulas has been the topic of much discussion in the American Bar Association, Wall Street Journal, etc. Virginia adopted a formula in Va Code
§ 16.1-278.17:1 for determination of pendente lite (temporary) spousal support that provides: “If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 28% of the payor spouse's monthly gross income and 58% of the payee spouse's monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 30% of the payor spouse's monthly gross income and 50% of the payee spouse's monthly gross income.”

This formula, however helpful, is not required to be used in all cases and is not required to be used for long term, post divorce awards.

It is important for you to know what are your absolute needs and what are your reasonable needs based on your marital standard of living. Completing a budget form to help you understand your expenses and your income sources should be done sooner rather than later.

Equitable Distribution

2012-03-01T09:00:00.000-05:00

Back to our series on divorce definitions.

“Equitable Distribution” is the concept used by Virginia to divide the marital estate. Equitable means what is fair and reasonable, and in Virginia divorce law, it means what is fair and reasonable considering the all the statutory factors: 1. The contributions, monetary and nonmonetary, of each party to the well-being of the family; 2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties; 3. The duration of the marriage; 4. The ages and physical and mental condition of the parties; 5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce; 6. How and when specific items of such marital property were acquired; 7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities; and more.

Virginia does not require a 50/50 distribution, although it is frequent. Virginia cases can have equitable distribution awards of 45/55, 40/60, etc. depending on the facts.

Divorce Definitions Continued

2012-02-28T15:54:00.001-05:00

    Last month we started a series on divorce definitions, in that spirit, we want to talk some about the basics of a separation/divorce process and some of the misrepresentations we hear.
    “Filing” of a divorce refers to filing (or providing) the Complaint to the court clerk’s office to initiate the divorce process. Filing occurs if an agreement cannot be reached or if an agreement has been reached, it is filed after the statutory time period (6 months from the date of separation if no children and one year from the date of separation if there is children). Settlement proposals are not filed with the court.
    “Serving” the other spouse refers to the procedure after a divorce is filed when the non-filing spouse receives a copy of the Complaint and in most cases are done by either a private process service or the sheriff’s office. Settlement proposals are normally not served.
    Negotiations are a wonderful approach to seek a resolution; it is a voluntary process that requires participation from both sides. The court system cannot force an agreement to be signed, and as a rule is not privy to the terms of the settlement discussions between the parties.

Cost of private school payments in divorce

2012-02-21T10:35:00.000-05:00

As many know, Virginia has developed and enacted child support guidelines that are based on parents' gross income, number of children, custodial time, cost of child care and cost of health insurance for the children. Although these guidelines provide the presumptive amount for child support, deviations can be awarded. One consideration for a deviation is the cost of private school. However, seeking a deviation for such costs is under repeated scrutiny by the courts and there are many factors that must be considered and information that must be presented including but not limited to whether public schools in the area are able to meet a child's needs, whether the child has special emotional or developmental needs that are better handled by a private school, the financial resources of the parties, the educational history of the child to date and others, etc. It is important to understand the law that provides courts the authorities to deviate.

Legal Custody and Physical Custody

2012-02-16T09:00:00.000-05:00

“Legal custody” and “physical custody” are the two components of custody that must be determined when children are involved in a divorce. Legal custody is the decision making aspect of raising children: some examples include when will they start school, will they be enrolled in a gifted program or IEP, what kind of non-emergency medical treatment should be done, when should braces be considered, how should the children be raised religiously. Physical custody is about the time that the children spend with each parent. Physical custody can be any arrangement that is in the best interest of the children taking into account parents’ schedules, children’s school and activity schedules, distance between each parent’s home, how old each child is and how each child copes with different environments.

Legal Separation

2012-02-14T09:00:00.000-05:00

“Legal separation” is factually based in Virginia. It is normally the date when spouses stop living in the same residence. There are other factual circumstances that the Courts may consider, however. These facts may include but not be limited to whether the parties have separate bedrooms, separate bank accounts, file taxes separately, eat meals separately, go to children’s functions separately, and otherwise present themselves to the public as being separated. If parties cannot agree on a date of separation, then the Courts may use these facts to decide. Be careful, though, as there is public policy in Virginia that states that the Courts may not do anything that may constitute promoting divorce; as a result, some Courts may find that no separation exists for divorce purposes unless the parties are in entirely separate residences. This can be a difficult area to navigate and working with a family law attorney is important.

Divorce Dictionary

2012-02-09T09:00:00.000-05:00

Today, we will begin a series that we call “Divorce Dictionary.” We have found over the years when working with clients that we use legal terms of art that are not familiar to the ordinary person who has never faced divorce, never thought he/she would face , and hopes never to deal with divorce again. To help navigate this world and its unique language, we have created this dictionary to help you understand.

You need a what?

2012-02-07T09:00:00.000-05:00

What you need is a QDRO? A what? A QDRO…. A qualified domestic relations order is that document that you need to tell the person who administers a retirement plan what to do with the benefits in that plan. It can tell what percentage of benefits each spouse receives; it can tell a specific amount that each person receives; it can tell whether investment experience should be applied (for certain plans); it can tell whether cost of living adjustments should be applied (for other types of plans); it can outline how survivor options must be exercised. Without this document, the plan administrator does not know what to do and will not do anything without it. The QDRO (pronounced –“qua-dro”) must be signed by the Court and a certified copy must be sent to the plan. Experienced family law attorneys can help prepare these important documents and work with the plan administrators to make sure that the division is accurately done.

Retirement Planning

2012-02-02T09:00:00.000-05:00

Retirement planning is important whether you are in your 20s, 30s, 40s, or 50s. It is even more important if you are facing separation and divorce. Understanding your family’s sources of retirement income is necessary. Will you have Social Security independently or through your spouse? Do you or your spouse have a pension (defined benefit ) plan through employment that will pay an amount each month at retirement? What are the terms of that plan with respect to cost of living adjustments, survivor benefits, etc.? Do you or your spouse have a 401k plan from which distributions can be taken? Are there any loans outstanding against the plan? Does the employer match contributions and at what time each year does such a match occur? Once you determine the potential sources that currently exist, a next good step is to work with your attorney and possibly a financial planner to construct a plan for how those sources can be distributed in a manner to help you toward your retirement goals. The division of retirement benefits as part of equitable distribution in a divorce matter can be highly disputed and emotional. Knowing how each plan works and how receiving portions of any or all of those plans is necessary to make sure your financial future post-separation is secure.

Divorce after 50

2012-01-31T09:00:00.001-05:00

Nowadays, in our family law practice, we are seeing more couples who have reached their mid-50s or beyond and who are facing separation and divorce. For these couples, the issue of retirement and the division of retirement benefits is crucial. Spousal support, if awarded, can have a significant impact on the retirement plans of a spouse. In the legal profession, and at bench bar conferences around Virginia, there are ongoing discussions about how long a payor spouse should have to work or if the payor spouse chooses to elect retirement, about what the impact should be on the spousal support award. Some judicial case opinions have indicated that a voluntary retirement should not act to reduce support at all and income is imputed to the retiree at the amount being earned before retirement; some recent judicial case opinions also suggest that if retirement is voluntary, then other assets may be considered to satisfy the support obligation. Financial planning is important at any stage of life, but a good supplement to your family law attorney in a divorce matter is a financial planner with experience and education in dealing with the special facts presented in such situations.

After the Divorce...

2012-01-26T09:30:00.000-05:00

Many people involved in a divorce are focused on getting through that process, learning what the new state of their financial affairs may be, and figuring out how to live on the net income that is available. The Final Decree of Divorce, with its gold seal, usually signifies the end of process that seems never-ending. However, you should not stop there without a careful review of your estate plan. Have you confirmed that beneficiaries on your accounts are as you want them to be? Have you determined that payable on death accounts have been changed to reflect what you want? Is your will accurate? Some changes happen automatically upon entry of a decree of divorce, but you should use your own diligence to make sure that everything is how you want it in the event of your post-divorce death. It’s smart planning.

Social Media

2012-01-24T09:30:00.000-05:00

Social media is great. Connecting to friends from work, friends from college, friends from high school can be fun. Posting pictures from your great vacation or from your night out lets you show your friends the awesome ways you spend your free time. But don’t forget, social media also is a way for your spouse’s attorney to find information about you if you are involved in a divorce, custody or other family law action.

Having an Advocate for You

2012-01-19T09:30:00.000-05:00

If you have been following us for the last several blogs, you may be wondering why divorce attorneys are giving tips about lessening stress for couples and marriages. We see folks when these stresses become too much for a marriage to handle, when planning and communication has not been done, or when goals are no longer aligned. We know the toll that separation and divorce can take on families. We are advocates for people who face separation and divorce, who must now face issues of custody and child support and alimony. We also feel it is important advocate for people to make their own new year’s resolutions to help them toward their objectives for their lives, their marriages, and their families.

Goals for the Family

2012-01-17T09:30:00.000-05:00

Personal short term and long term goals are important to any family unit. What does Mom want to accomplish this year and beyond? What about Dad? Don’t forget the kids, they have goals too – from trying a new sport, improving their skills at a prior activity, doing well in school, etc. Employment changes, large household purchases, a special family vacation should all be considered in goals for either the coming year or future years. Setting these goals as a family can help everyone enjoy them and minimize any stressors that may come with them.

Finances in a Marriage

2012-01-12T09:30:00.000-05:00

Setting up a budget as we have discussed in our last two blogs can help the financial stresses that can face a marriage. Married couples who encounter unexpected expenses without the means to pay for them can find themselves in heated arguments. A leaky roof, a trip to the emergency room, etc. should be a time when couples come together to resolve a problem, but without proper financial planning such times can lead to unintended negative consequences.

What to Do with the Leftover?

2012-01-10T09:30:00.000-05:00

If at the end of the last blog, you had a positive amount left from your income less your expenses, you can then decide how to use this discretionary amount. Are there expenses you have that allow you to have things you enjoy? Do you want to put this amount per month toward a family vacation? Do you want to put some into college accounts for children or savings accounts for a large expense? Are you putting any money away toward retirement and can you use some of this money for that purpose? The goal is to have enough income to cover both your necessary expenses as well as have some for these discretionary expenses.

Calculating Your Income

2012-01-05T09:30:00.000-05:00

Last blog, we mentioned learning about your household finances, taking responsibility for staying in the know, and managing them with the goal of having some savings. A budget is a good place to start this resolution. Start with your household income. Remember gross income is not what you get to use, take out your federal and state taxes (there are great calculators on line to help you determine this). Now, subtract your fixed monthly necessary expenses: mortgage/rent, utilities (electric, gas, cable, internet, trash, phone, etc) , groceries, car payment, insurance (house, car, health), gas, medical expenses, and other regular expenses. What do you have as your end amount? Stay tuned for our next blog….

It's a New Year

2012-01-03T09:37:00.002-05:00

It’s January of a new year and for most of us that means it’s time for some resolutions. In our family law practice, we have had the opportunity over many years to hear the resolutions that our clients make and we want to share a few of them with you: (1) Learn about your household finances; (2) Take responsibility for staying in the know about monthly expenses; (3) Manage your finances so that there are savings each month; (4) Communicate with your spouse; (5) Communicate with your children; (6) Have a personal short term and long term plan; (7) Laugh; (8) Be thankful; (9) Exercise your body and your mind; (10) Have a good estate plan.

Working With a Guardian ad litem

2011-12-13T09:00:00.000-05:00

Often in custody matters a court will appoint a Guardian ad litem (“GAL”) who is a licensed attorney and serves as the advocate for minor children.

There are Supreme Court of Virginia Rules that provide GALs standards by which they should adhere in their representation of children. GALs also are required to take certification courses due to the unique issues that they face as attorneys for children.

During the process, the GALs often will provide interim guidance as to what their concerns may be. GALs make recommendations to the Court based on facts he or she has learned as to what parental arrangements serves the best interest of the child(ren).

In working as a child’s advocate, the GAL may meet with the children at each parent’s house, at school, or at other locations. Home visits may be scheduled or unannounced.

Some guardians request you to complete a questionnaire and/or to sign authorizations for them to allow them to obtain information about the parent or about your children. Keeping a GAL informed throughout a matter can be helpful and having your attorney checking in with them periodically can be beneficial in seeking your objectives for your children.

Working with a Custody Evaluator

2011-12-06T09:00:00.001-05:00

In custody cases where issues are raised concerning either parent’s mental, a child’s mental health where then children may be displaying changed or abnormal behavior, possible substance abuse, or other facts that can impact a parent’s ability to care for a child, the Courts may upon motion from either party or upon its own motion require that a custody evaluation be done.

A custody evaluation is usually done by a licensed clinical psychologist with course work, experience and expertise on children and parents in custody situations. They have been trained in particular methodology, including the administration of certain tests, that are directed toward obtaining facts and information to assist a court in making a custody determination that is in the best interest of the child.

Some components of a custody evaluation include; testing of each parent and child; collateral interviews, and clinical observations. The American Psychologist Association has developed standards by which a custody evaluator must perform his or her analysis.

Attorneys may be permitted to talk to the custody evaluator during the process to provide facts and insight; and a custody evaluator may answer the attorney’s questions during the process.

The custody evaluator submits a report, often lengthy, that outlines his or her findings and conclusions. The custody evaluator may also testify and answer questions by each party of the Court.

When the court is considering the number of factors on custody, including but not limited to, the age and physical and mental condition of the child, the age and physical and mental condition of each parent, the relationship existing between each parent and each child, the needs of the child, 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, and any history of abuse, this additional source of information can be particularly helpful.

How to deal with Negative Equity in the Marital Residence

2011-11-29T09:00:00.001-05:00

Prior to 2007, in a divorce situation, the division of the marital residence would often be based on how to distribute net proceeds from the sale of the home. The sale of the home would normally occur within a few months and before entry of a final decree. Now, however, consideration has to be given to that unfortunate scenario of how to divide responsibility for a short sale or a foreclosure. With those discussions come how to negotiate a short sale with the bank, how short sales may affect treatment of the mortgage, and whether a short sale will result in a forgiven balance, a separate debt, or a tax form showing the debt as income to the parties.

Negative equity may be further exacerbated if a closing on the sale of the home does not occur before a divorce decree. If you are divorced by still own property with your spouse, the title changes and your house can become security for the other person’s debt.

Working closely with a lender you trust, a real estate attorney, and your family law attorney can be beneficial to both home owners. A divorce may mean you are separated but a joint liability on a mortgage does not go away easily.

Effect of Bankruptcy on any Pending Divorce

2011-11-22T09:00:00.002-05:00

Bankruptcy and divorce can some times go hand and hand. The financial difficulties that lead a couple to consider bankruptcy can also put such strain on the marriage that a separation or divorce also is contemplated. How to address the payment of debts and the potential liquidation of assets is part of both areas of law.

If you are in bankruptcy at the time you separate and are contemplating divorce, you may need to work with both your bankruptcy attorney and divorce attorney to determine what the bankruptcy court will allow and then to factor the bankruptcy into debt and asset allocation. Terms of spousal support and child support may need to be negotiated in conjunction with the bankruptcy plan, what the trustee will allow and what the Bankruptcy Court will allow.

Questions also arise if a spouse threatens bankruptcy and how that does or does not impact marital debts, payments of spousal support and payment of child support.

Consultation with a family law attorney who understands the dynamics of complexities of the interplay between divorce and bankruptcy can put your mind at ease.

Potential Significance of Life Insurance and Bargaining Value

2011-11-17T10:46:00.000-05:00

Life insurance can provide essential security in a situation where at least one spouse may
feel a great sense of insecurity. Under Section 20-108.1 (D), a parent who has a child support
obligation can be required to carry life insurance as long as there is a child support obligation. Section 20-107.3(G)(2) provides that “the court may order a party to designate a spouse or former spouse as irrevocable beneficiary during the lifetime of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy.”

Parties also may choose to agree that as long as there is a spousal support obligation or an
obligation to make payments as part of equitable distribution, the payor may be required to
maintain sufficient coverage.

Important things to remember about life insurance are: premiums must be paid on time,
term coverage may expire at a certain date, beneficiary designations must be kept current and
accurate.

Another important piece to remember about life insurance when crafting any type of
settlement proposal is that whole life insurance policies have cash value which can be considered
a marital asset. You will want to factor this in to the entire picture when dividing the marital
estate.

Taking advanced steps to protect your financial security post divorce is important. Do not make assumptions. Section 20-111.1 provides that any death benefit, not otherwise specifically addressed as part of any final decree or written agreement of the parties, is revoked upon entry of a decree of annulment or divorce.

Going Back to Work

2011-11-10T08:25:00.001-05:00

During a marriage, some couples may make decisions about whether a spouse should stay home to take care of minor children. Many families believe it is important for a parent to be the primary care taker during a child’s pre-school years; and many families, especially those with more than one child, find it beneficial to have a stay at home parent when children are in school to help with activities and homework.

When a separation occurs, the stay at home parent can sometimes have to face a decision, either voluntarily or out of necessity, to return to work. Depending on how long he or she has been out of the work force and depending on the spouse’s prior employment history and skills, finding a job or getting back into a career can be scary.

Your family law attorney can help put together a work force reentry strategy that also looks out for the best interests of the family’s children; working with a vocational expert also may be helpful in this regard. A vocational expert can discuss with you many different aspects of going back to work including the availability of positions in your work field, what additional schooling and or education you may need to get back up to speed to be a competitive candidate, and if changing careers makes more sense given the length of time out of the job market.

Co-Parenting

2011-11-08T08:25:00.001-05:00

Joint legal custody is the sharing of decision making on raising a child. Issues of education, religion, non-emergency medical treatment are part of the decision making processes that may require a consensus between parents. Joint legal custody does not require shared physical custody.

The ability to communicate and to listen is necessary in a joint legal custody arrangement. Access to and sharing of information pertaining to the children must occur.

But what happens when a consensus cannot be reached? Before a determination of wether one parent should be the sole legal custodian, other options may be available.

Co-parenting classes are offered throughout the Richmond and central Virginia area. Counselors who focus on the unique issues related to co-parenting can offer assistance. Many books are available as well. One recommendation from clients and guardians ad litem is "Helping Your Kids Cope with Divorce" by M. Gary Neuman.

Even though a husband and wife may no longer be married, once a parent – always a parent. Learning how to co-parent effectively early in a separation can be the foundation on which your child’s ongoing development is successful.

Relocation

2011-11-03T08:25:00.000-04:00

In today's society, moving can occur for any number of reasons: employment changes, remarriages, elderly parents in need of care. When relocation involves children many factors are considered in determining whether the children should move with the relocating parent. The distance of the new location from where the other parent lives is a large factor as it impacts how each parent will be able to continue a relationship with the child. Schools, neighborhoods, opportunities for activities, proximity to other extended family are other factors. Importantly, how the move is best for the children is the focus.

Under the Code of Virginia, either parent who intends to relocate has to give a minimum of 30 days written notification to the other parent. This notification allows a proactive approach on how the other parent would see the children. A relocating parent needs to have a plan on how and when the other parent would see the children. A parent who faces the possible relocation of his/her children needs to quickly learn the options in and out of court to address this change of circumstance.

Change of Custody

2011-11-01T08:25:00.000-04:00

Even after there is an agreement for custody or a court order granting custody, the court always reserves the right to make changes based upon what is in the best interest of the children. As long as children are minors, the court can make changes in any award which affects them.

Parents must recognize that children mature and circumstances change over time. As parents reassess their developing children’s needs, it is proper to ask whether interests of the children would be best served by making a change in custody. However, parents must also recognize that a change of circumstances (ex: a parent has remarried or is planning to move) does not automatically mean that a change of custody is in the children’s best interest. Each case must be evaluated on its own merits and all factors carefully weighted. Some of the most difficult cases result when one parent decides to relocate out of the Richmond area, making a custody and visitation arrangement that has worked well in the past no longer possible.

Other kinds of post-divorce custody situations we have been called upon to deal with are:
*Father has remarried and has a wife who can stay home with the children.
*Mother has remarried and her new husband has been transferred.
*Children are older and want to go live with the non-custodial parent.
*Child is a teenager and is not progressing well in school and/or is getting into
trouble.
*One parent has custody, but children have been spending a large portion of
their time (half or more) at the other parent’s home.

These are just a few examples of the many situations that may cause parents to reassess their children’s circumstances. Having an experienced family law attorney help evaluate your particular situation is important.

Custody

2011-10-27T08:25:00.002-04:00

Custody of children is one of the most important matters that must be decided by
parents when they separate or divorce.

Many options are available as the previous traditional concept of family life has
changed dramatically in recent years. Often Mothers are the primary caretaker
of the children, but now many fathers are playing an expanded role in their
children’s lives and taking on more of the nurturing aspects of child rearing, while
mothers face the demands of working outside of the home.

Understandably, the realities of modern family life have brought changes in
custody and visitation arrangements. One option is joint legal custody (decision
making) with the primary residence with one parent and visitation to the other.
Another alternative is shared custody, where both parents have legal and physical
custody and the children spend part of the time in each home. Today, as parents
seek more creative approaches to the demands of post-separation custody, a
wide variety of options are available. An experienced family law attorney can help
develop options that fit your unique scenario.

Do People Actually Divorce in their Sixties, Seventies, and Eighties?

2011-10-25T08:25:00.001-04:00

Couples who have been married for many years face new challenges in life

as they move through their senior years. People in their sixties and even

seventies and eighties can be wrestling with how to make their lives more

comfortable and what to do about their marriages.

Sometimes a person who has stayed in a bad marriage for many years
decides he or she doesn't want to spend their remaining years that way.
Sometimes good marriages change or a difficult marriage gets more difficult
as age and health bring personality changes that are hard to handle 24 hours
a day or that give rise to safety concerns. Sometimes the problems are
exacerbated by alcohol abuse, depression, or other physical or mental health
problems including Alzheimers, dementia, or other illnesses that can affect
mental acuity or personality.

Older or disabled persons may have special income issues involving health
insurance, social security, or retirement benefits. Spousal support can be an
issue. Guardianship may be appropriate in some cases. Adult children from
this marriage or from a prior marriage may complicate matters or may be an
excellent resource. Wills, trusts, powers of attorney, and advanced medical
directives are important parts of the equation. Instead of just worrying about
these things, consult with an experienced family law attorney to help you.

Talking these problems over with an experienced family lawyer can help. It
is important to consider financial issues, safety issues, emotional issues, and
practical matters that are unique to your own situation. Sometimes it is better
to stay together despite the problems, but to make certain changes that manage
the problems better. Sometimes it is best to live apart, but stay legally married.
Sometimes divorce is necessary and appropriate. Each person's situation is
unique, and you may need help to sort out your options.

Protecting Your Rights in Divorce

2011-10-20T08:25:00.001-04:00

Couples in a well-functioning marriage work together as a team and rely on each other for help, comfort, mutual problem-solving, and enjoyment.

When a marriage breaks down or gets on shaky ground, each person begins to lose trust in the other and in the relationship and starts to think in terms of protecting himself or herself. This is because in a separation or divorce, the same kind of sharing can’t continue as it did when the couple was a unit. Major decisions will have to be made about the home, the support and care of the children, the support of a dependent spouse, and any retirement accounts or other assets, which may advantage one person and disadvantage the other. The parties’ interests are not the same when it comes to a separation or divorce, but rather, each has a separate interest to protect.

When you are separating or divorcing, or when that seems like it could be a possibility, it is important for you to start learning about the law and about the processes available. You need to know what decisions get made, how they are made, and how that can affect you and your children. You need to understand your rights and the various ways of protecting them.

It is natural that there will be conflict when spouses are separating, as their own personal interests differ from each other. This does not have to mean that you can’t work on those differences in a cooperative way, while still protecting your rights. If you are able to do that, you both will save a lot of stress and money.

Protective Orders

2011-10-18T08:25:00.000-04:00

October is domestic violence month and as family law attorneys we see too many cases of domestic violence. Domestic violence can occur against men and women. The Courts have set up three levels of protective orders in an attempt to put safeguards in place for those cases where allegations of threats or acts of family harm are substantiated. Domestic violence can occur against men and women. An emergency protective can be granted for a period of 72 hours; a preliminary protective order can be granted for a period of two weeks; and a protective order can be granted for up to two years. Protective orders can award remedies that include a "stay away" provision, exclusive use and possession of a residence, exclusive use and possession of a vehicle, payment of utilities.

Inheritance - Separate or Part of the Pot?

2011-10-13T08:25:00.001-04:00

In the last blog we talked about property division and the concept of "marital
property". As mentioned, there are exceptions to the presumption that assets
acquired during a marriage are marital and subject to division. One such
exception may be an inheritance. An inheritance that is received from a source
other than the other spouse is presumed to be separate and not subject to
division. In a marriage, however, we often see spouses who have combined
an inheritance with joint or marital investment accounts, bank accounts or
other financial assets. This is normal where marriages are partnerships and
work together. However, in the event of a separation or divorce, if the
inheritance has been commingled in this fashion, it may have changed the
separate nature of that inheritance to a marital asset or a combination of both
separate and marital assets and may be subject to division. Experienced family
law attorneys can help you assess the classification of an inheritance and can
help you understand the legal issues involved and ways that funds mixed with
marital monies mayor may not be able to be traced back to their separate origins.

Property Division

2011-10-11T08:25:00.000-04:00

Marriages give a couple an opportunity to accumulate wealth and build a secure future if they manage their money well and plan carefully. When separation and divorce occur, property and debts have to be divided appropriately between the marriage partners either by agreement or by the courts, and each person must proceed through life with less than the total financial package he or she had expected to have if the marriage had continued.

The division of assets and debts can have a long-lasting effect on each member of the family and must be done carefully. The law in Virginia governing property division in divorce is called “Equitable Distribution”. It provides for assets and debts that are the fruits of the marriage to be divided fairly. This division can be done by agreement or by a judge based on evidence produced by the parties and based on statutory factors if the parties cannot agree on the division.

Regardless of how an asset is titled, if it was acquired during the marriage, it is presumed to be marital and considered in equitable distribution. This means that even if a house or vehicle or retirement account is in one party’s name and not the other and is not jointly titled, the value of that asset still comes into play in equitable distribution. Some exceptions do exist, and it is important to make an analysis of what there is, whether it is marital or separate or hybrid, what it is worth, whether there are any liens, how it is titled and possessed and what should happen to it.

Marital debts, like assets, need to be divided. They can be split any way the parties agree. If the parties cannot agree, a Court apportions the debt. If there is a lien on the property being divided, the debt will be taken into account when dividing the asset. It is important to know whose name(s) the debt is in and to consider whether that debt should be assumed or refinanced or if the asset should be sold and the lien paid off.

Consulting with an experienced family law attorney can help you better understand what will be treated as marital and will help you formulate options in dividing a marital estate.

Making Initial Financial Decisions When A Separation Occurs

2011-10-06T08:25:00.000-04:00

One of the hardest problems facing each person when a couple separates is how to handle the finances until everything can be resolved. This is called the pendente lite stage. Both short and long-term decisions will be required, and many decisions are inter-related.

Short-term decisions include:

* Where will each person live and what will it cost?
* Who will be responsible for bills and expenses?
* Will the couple continue to have joint bank accounts and joint
credit cards, and for how long?
* Will a homemaker wife have to seek any immediate full or
part-time employment?
* Will there be any payments of child support? Spousal support?
* Who gets to use what assets until things are finalized?
* Who collects the income from investments?
* Can either person sell or dispose of assets?
* Can either person withdraw funds from any existing equity line?
* Will there be any changes in standard of living? If so, what?

These decisions set the tone for more permanent arrangements.

A good family law attorney can help you work out appropriate pendent lite (temporary) arrangements if your spouse will cooperate in trying to arrive at a fair arrangement. If, however, your spouse acts arbitrarily and unfairly, you will need to take prompt steps to protect yourself, as things that happened at the temporary stage can have a dramatic impact on any final settlement or award. Select a family law attorney at a very early stage to help you through this process. Be sure the attorney you choose will help you explore all avenues of possible settlement, and will empower you to understand your options for making informed decisions for yourself.

Divorcing Couples Five Biggest Mistakes

2011-09-22T08:25:00.001-04:00

One out of every two marriages ends in divorce, which is a very unfortunate statistic of today’s society. Marriage is an important, and for many people, sacred institution, and divorces should only be a last resort when all else has failed.

Make no mistake, a divorce takes its toll on both parties, even the person seeking it. There are good ways and bad ways to go about a divorce. It takes two people communicating and cooperating, despite their differences, and working for a fair settlement to divorce the smart way.

If the parties cannot communicate or cooperate, the parties can be forced into expensive litigation. Fight vigorously in court if you have to, but never take that route if a better one is open to you.

Here are the Five (5) biggest mistakes couples make in divorcing:
1. Refusing to meet for settlement discussions right from the beginning.
2. Refusing to provide financial information and documentation voluntarily.
3. Seeking a result that punishes the other person or ignores their needs
4. Treating the other person with disrespect.
5. Listening to lawyers who only prolong the fight, rather than selecting or changing to lawyers who will help you protect your own rights, but work toward a realistic resolution at the same time.

What To Do If Your Spouse Has You Served With Legal Papers

2011-09-20T08:38:00.002-04:00

When parties are having marital difficulties, sometimes one party abruptly serves the other party with legal papers. You come home and find papers taped to your door or an individual hands you papers which normally include a document called a ASummons@. If you are served with legal papers it is imperative that you immediately make an appointment for an initial consultation with a family law attorney. Take with you to that consultation a copy of all papers served on you. It would also be good to have any correspondence from your spouse or your spouse=s attorney and all documents that you have that relate directly to the papers served on you.

Under no circumstances should you just ignore the papers and hope they will go away. YOU CANNOT AFFORD NOT TO SEE AN ATTORNEY. You have legal rights that need protecting and you need to take prompt action with the help of an experienced family law attorney. Whether you are at fault, your spouse is at fault, you are both at fault, or you have simply grown apart, you still have a right to be treated fairly and you need to know and understand your rights and the processes that are available. Never give up the goal of settlement, but don=t let yourself be placed in a vulnerable position by failing to have an attorney who will look after your interests in the litigation and settlement efforts.

If Divorce Is In Your Future

2011-09-15T08:25:00.002-04:00

If divorce is in your future because you and your spouse have exhausted all ways of making your marriage work and one or both of you have decided to end the marriage, you need to understand what is going to happen.

Divorce is tough, whether it is done by agreement or not. When you get a divorce you are dividing your money, your property, your children s lives and having to start a whole new life on your own. Divorce can happen to you whether you want it to or not. It only takes one person to end a marriage.

If you feel that divorce may be in your future, learn all you can about your rights and the processes that are available, and keep these things in mind:

1. Don’t sign anything without the advice of an attorney. You will be bound by what you sign and you can t undo it later.

2. Don’t leave home without the advice of an attorney. Learn how your leaving could affect you, your rights and your family.

3. Don’t use your kids as weapons or as messenger and treat each other with respect no matter how hurt or angry you are.

4. Always work for a settlement agreement if a fair one is possible and choose an attorney who will help you follow a smart course of action.

5. Learn about the processes that are available such as contested divorces, uncontested divorces, litigation, mediation, and collaborative approaches.

Keep Your Friends Close (But Farther Away During a Divorce)

2011-09-13T08:25:00.004-04:00

Going through a divorce can be one of the most difficult situations that you will
ever have to go through in your life. It's a time when you need your friends and
family the most, and will tend to lean on them more than ever. They can be
great asset when it comes to having a shoulder to cry on, someone to scream
with, and somebody to make light of the situation; however, they can also be
your worst nightmare when it comes to the actual divorce process. While most
friends and family have the best of intentions when they are telling you their
divorce [horror] stories (come on, we have all heard them: My Husband's
attorney was a crook, My Wife's attorney was best friends with the Judge,
My Husband got everything, sometimes they can do more harm than good.)
It's very easy to get caught up in another person's drama of their situation,
but do not let that dictate the way that you are going to approach your own
situation. It more than likely is not the same scenario; and even though there
are rules and statutes that govern the divorce process, each and every divorce
is unique to the parties' specific situation. We appreciate the support that a good
family member or friend can give, and we know that support can be invaluable;
but, we also encourage people to be mindful of what things are helpful to listen to,
and what things can be detrimental. Therefore, in addition to family and friends,
it is very important to consult a family law attorney and find someone who you
connect with and trust.

Rebuilding After Divorce

2011-09-08T08:30:00.000-04:00

People who have gone through a separation and divorce have the difficult task of rebuilding their lives and finances as they move on from the divorce. Often, they have found new strengths and new joys to help them progress. Rebuilding frequently entails a new residence, new friends, a different lifestyle, a different budget and managing on your own without the other person. How you approach these changes largely controls your level of satisfaction with your new life. Whether you and your ex-spouse engage in ongoing conflicts also affects the quality of life after divorce. Some people simply cannot let go of the fight while still others find that life changes result in new issues they can’t control.

Those who have approached the divorce in a cooperative and problem solving manner usually have an easier time approaching the changes that occur after the divorce. Couples who have learned how to communicate and work together as separated parents usually deal more easily with the issues that come up. Couples who cannot talk to each other and who fight over every aspect of parenting their children most often end up in a heated conflict over post-divorce issues at some point in their children’s development

Even when things have been settled by an agreement or court order, complications can arise after a divorce. This can include changes in your ex-spouse’s life or in your life or simply the changing needs of growing children. Issues can arise about remarriage, moving, changing jobs, changing schools, step parents, relocating out of the area, custody, visitation, and support. How you approach these changes largely controls your level of satisfaction with your new life and can have a major financial impact as well. If you find that you and your ex-spouse are unable to resolve ongoing issues or new issues regarding your children, our attorneys at Hall & Hall, PLC would love to meet with you and discuss your situation and provide your options for moving forward.

Why Do Marital Problems Intensify During the Holidays?

2011-09-06T08:30:00.000-04:00

When a couple is having marital problems, the emotions become intensified at the holidays. Holidays are a family time with important traditions and an expectation of joy. When parents are having marital problems, the whole family can sense it. When parents are separated, the old traditions are broken and tensions often arise about how the children will spend important holidays. It affects the children, the parents, often the grandparents, and other extended family members.

Sometimes, the parties can work out an appropriate holiday schedule themselves. Other times, they feel they have to resort to the courts for a court-mandated schedule. The decision about holiday visitation is made on a case by case basis when it is brought before a judge. Usually, the courts require the parties to share holidays in some fashion.

Parents should try to work out a schedule that allows the children to spend time with each parent, and where extended family is involved, with each parent=s extended family. If they can=t work it out on their own, they will be wise to consult a child psychologist and get help in arranging a good schedule. Attorneys experienced in family law can also help a parent understand what a reasonable arrangement would be under the circumstances. It is only when all else fails that parents should resort to the courts, and, if they feel they must have a judge decide it, they need to think carefully about what they request of the judge because both parents are vitally important to a child and the child=s life should be as undisturbed as possible.

What is Adultery and How is it Condoned?

2011-09-01T09:55:00.000-04:00

Adultery is defined by Virginia Law as any person, being married, who voluntarily has sexual intercourse with any person not his or her spouse. Accordingly, in order for a person to be guilty of adultery, sexual intercourse must occur. When one spouse commits adultery, it is very hard on a marriage and often leads ultimately to a divorce.

In a divorce case, adultery (whether committed during the marriage or after a separation) has significance in a number of areas. It can be grounds for a divorce. It can bar spousal support being awarded to the adulterous spouse. It can be a factor in how the courts divide the marital assets. Adultery can be one factor in custody and visitation, especially if the relationship has taken place in the presence of the kids or has taken significant time and attention away from the children.

From a legal standpoint, a wronged spouse should not assume that because the other spouse committed adultery the other spouse loses all rights. The law of property division, support, and custody must be understood in order to seek maximum relief based on adultery.

Condonation is an important legal doctrine that also must be considered whenever there are allegations of adultery. If a person cohabits (lives as man and wife) with the adulterer after knowing of the adultery, that person is considered to have forgiven or condoned the adultery. That forgiveness is conditional, and if the adultery continues the fault is revived. It is important for a person who is faced with a potential issue of adultery to obtain legal advice at the earliest possible time to discuss these matters in more detail.

Can a Couple Survive Infidelity?

2011-08-30T10:33:00.000-04:00

According to statistics, one in every 2.7 couples is touched at some point in their lives by infidelity. Some marriages survive the affair, while others end as a result of it. Infidelity may be a direct cause of the break-up or merely a symptom of other problems which indicate the marriage was not working.

Each person will have to determine the significance of the affair to their marriage and decide upon an appropriate course of action. Determining whether to recommit to the marriage or to end it is an intensely personal decision which each individual must weigh very carefully. Specific legal concerns that might arise out of such issues are:

*What is the significance of the affair?
*Should I undergo counseling?
*Are therapy records subject to subpoena?
*What impact does the affair have on custody matters?
*What impact does the affair have on financial matters?
*How should I handle questions about the affair?
*Can the other party to the affair be subpoenaed or protected from subpoena?

Each person’s situation is different, and rather than relying strictly on the advice of well-meaning family or friends, the best course of action is to consult a family law attorney.

Ten Tips for Going Through Separation or Divorce

2011-08-23T16:34:00.000-04:00

1. Get legal advice early.

2. Do not move out of the house without having consulted a family law attorney.

3. Do not sign anything without having consulted a family law attorney.

4. Keep a written journal of key events or conversations.

5. Be fair, but protect yourself.

6. Explore all avenues for saving your marriage before jumping into divorce; if your marriage cannot be saved, work with your attorney to develop the best process for your individual situation.

7. Gather financial documents.

8. Make sure you have funds at your disposal for an attorney and for temporary expenses.

9. Keep your children out of the middle no matter what their ages and keep their best interest foremost in your mind and your heart.

10. Consider any temporary measures necessary to preserve assets or protect credit.