Can my spouse get any money I had before my 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 & Hall

How should we file our taxes if we are separated?

That question is one of many that divorcing and separate couples tend to have around this time of year with April 15th approaching.

If we are not divorced yet, should we file jointly?  How should we pay any taxes owed or split any refund received?
Who gets to claim the children?  The person who has more physical custody or the person who pays child support?
Who gets to claim the interest deductions for the house?  The person who lives in the house or the person who pays the mortgage?
Do I have to pay taxes on child support I receive?
Do I have to pay taxes on alimony I receive?
Do I have to pay taxes on money paid to me for property division?
Can I deduct any of my attorney fees.

These are important issues that can have a financial impact.  They are questions that do not necessarily have one answer.  Getting with an attorney and certified public accountant in advance of your tax filing deadlines can help you do good planning.

GALs for children in custody cases

Guardians Ad Litem (GALs) can be an important resource for helping a Court determine a custody arrangement that serves the best interest of the child.   A GAL can be appointed by the Court on its own or upon motion that is made by one of the parent's or parent's attorney.  GALs can be appointed for infants, young children, teenagers.

It is important if a GAL is appointed in a case that you understand the scope of what the GAL intends to do.   In the past, GALs had the time, resources, and ability to do extensive factfinding, multiple visits with children and parents and third parties, school visits, etc.  Now, with the number of custody cases increasing, the extensive scope of GAL representation has had to change.   There are some cases where the mental health of a parent or the health of a child is an issue; there are some cases where educational challenges faced by a child need to be considered; some cases involve parents who live in different states; and there are many other scenarios that could present issues in a case.  A Court may perceive a GAL's role in case to be focused on a specific issue.

Try to understand why the Court appointed the GAL;  know what you want the GAL to consider for facts and share the facts or sources of facts for the GAL.  Understand whether the GAL may or may not do a home visit, whether the GAL may or may not speak with the third parties.  Not every case warrants the same level of fact finding; therefore,  you need to understand why the GAL may or may not do something that you think is important as the parent of the child.

Remember, the GAL is there to represent the best interest of the child.  The GAL is not there to take sides of one parent or another.  

Household Budget in a Divorce

Whether you are seeking support or whether you may be a potential payor of support, it is important for you to understand your household expenses.  During your marriage, the paying of bills and the managing of finances may have fallen to one person or another.  Now, it is up to you to be sure you know how much is your mortgage or rent, utilities, groceries, insurance, gas, etc.   There are various forms available on the internet to prepare a budget sheet (or what we refer to as an income and expense statement).  We provide our clients with a form recognized in central Virginia courts.   Some people are good with Quicken reports.  Whatever your mechanism, your attorney needs this information to help piece together a spouse's need or a spouse's ability to pay. 

Winter doesn't stop divorces

http://www.cnn.com/2014/01/17/living/january-divorce-month-matrimony/

US Department of Justice and same sex couples' rights

Chances are that you have seen the news.  We wanted to be sure, in case you haven't, that you are aware of the initiatives going on at the federal law as they may impact family law matters in Virginia.
http://www.cnn.com/2014/02/08/politics/holder-same-sex-marriage-rights/index.html?iref=allsearch

News that may impact the practice of family law in Virginia

http://www.timesdispatch.com/news/state-regional/virginia-politics/herring-to-back-same-sex-couples-in-virginia/article_23b8b3ec-3cc1-537b-aa3a-6f9a55c2d3f0.html