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