Modification of alimony/spousal support

Your divorce is over.  You receive an award of spousal support (or you are ordered to pay).  You begin your post-divorce life.  Then, it happens... the summons on your door.... your former spouse is seeking a reduction or termination of spousal support (or your former spouse is seeking an increase).   Suddenly, you have to deal with the past colliding with your present and impacting your future.  Understanding based on the documents of your divorce whether a modification can even be sought is also important. Modifications, if allowed, then require two findings:  (1) a material change of circumstances that (2) warrant an increase or decrease in support.  Understanding what documents and evidence is needed that relate to these two prongs is essential to putting together a strong modification case (or opposition thereto).   There are financial issues, health issues, relationship issues that may need to be considered.  Be sure you are taking proactive steps to have all the information so your situation can be evaluated and your future can be protected as much as possible. 

Holiday stress and separation

Stress during the holidays exist for many families whether intact or not.  For separated spouses and families that stress can be greatly intensified.  So, be sure you prepare in advance.  Make sure you have your support system in full force and get any appointments with professionals scheduled in advance.  Choose your battles with your ex-spouse and/or children wisely.    Plan your own budget for holiday spending and figure out how to add your own touches to this season.  Take time for yourself.  Pamper yourself.  Remember that although this season may be different from prior ones, you will be ok.

Understand your social security in a divorce

As the divorce rate of older couples increases, the impact of Social Security laws is important for each spouse to understand.  These benefits may affect spousal support and other issues in a divorce.  Having a good knowledge of your benefits and/or your spouse's benefits can be helpful in negotiations; and this knowledge may need to be shared with the Court if matters are litigated.   The Social Security's website is a wealth of information to help. http://www.ssa.gov/retire2/divspouse.htm  is a good place to start; and you can follow links from there.

Is there a Divorce Fiscal Cliff?

There has been much talk lately about a potential national "fiscal cliff" -- i.e. changes in various statuses that can have a significant economic impact.  A different kind of fiscal cliff can also exist for folks upon the finalization of their divorce.  Economically, the parties have either reached a financial agreement or a Court has made a determination about how financial assets and liabilities will be divided.  Knowing the potential cliff consequences while negotiating or while preparing to present evidence to a Court is important.  For example, the marital residence being sold can have different impacts depending on how long it has been owned whether it has positive or negative equity, whether either party can qualify for a new mortgage or lease.  Another example is the tax implications that come from being divorced and no longer being able to file jointly depending on whether spousal support is being paid or requested, depending on who is claiming the children, etc.   These are just a few limited examples.  Be sure when you are contemplating a separation or divorce that you are working with your attorney and any additional financial professionals to understand all components of assets and other finances pertaining to you and your family to seek as much protection as possible.

Gift giving

The holidays are upon and the season of gift giving can  pose challenges, new stresses and anxiety to separated parents.  Getting in a good frame of mind is important before you start making those shopping lists.  Too often parents are worried that the other parent is going to out-do them, one-up them, etc. on buying the best present or giving the present that the kids wanted the most.  Remember, holidays don't have to be about the tangible gifts.  How will you spend the season with your children so that they have great memories?  How will you give your children more of your own time and attention whether it's baking cookies, volunteering for a charitable organization, ice skating, going to the movies?  How will you make sure that any tension between you and the other parent is minimal so that the kids can enjoy being with family to share the spirit of the season?  These things could matter more than who gave the most expensive toy.

Giving Thanks

This time of year, the entire holiday season, can be very difficult for folks going through a divorce or separation, for families trying to adjust to sharing holiday time apart.  New traditions have to be formed.  New perspectives on how to celebrate have to handled.  Children will look to their parents to see that this new normal is ok; children will want to be sure that it is ok for them to smile and enjoy the wonders of the next few months.  Although it may be hard, we encourage each of you to take time and find 5 things for which you are thankful and share them with others.

We are thankful for the opportunity to help people who are facing a significant life transition and for the chance to help make a difference.  Happy Thanksgiving.

Interesting piece on military marriages from NPR this morning

http://www.npr.org/2012/11/19/165454211/military-moral-code

James Bond in your divorce or custody case

Interesting article on the use of technology by spouses and parents involved in family law disputes.  It is extremely important to note that anyone even considering such things tread very carefully.  There are significant criminal and civil sanctions in Virginia and prohibitions on what you and your lawyer may or may not use from a legal and ethical standpoint.  Often the use of some of these spy devices is not worth the potential consequences you could face for violating laws.  In trying to achieve that sense of "Gotcha!", you may be the one who is more seriously penalized.
http://professional.wsj.com/article/SB10000872396390443995604578002751421246848.html?mg=reno64-wsj

Protecting our service members

Happy Veterans Day and thank you for your service!

We thought it would be appropriate with this blog to highlight one way that Virginia has stepped up to help military parents.

In 2008, the General Assembly passed into law the Virginia Military Parents Equal Protection Act.  This law is designed to address issues for parents who are deployed including mechanisms to obtain changes to a custody order when the deploying parent returns and provisions for how the non-deploying parent is to foster visitation with the deploying parent.

The Virginia law supplements relief provided in the Servicemembers Civil Relief Act.

Serving our country is an important duty; it also provides complex procedural and substantive issues for members facing separation and divorce.  This law is just a sample of what is available when military issues arise.

Marital property - Myth 1

The misconception that we often hear in divorce matters is that the law says "what's mine is mine, what's yours is yours and what's joint is divided."  In the world of marriage, divorce and family law, it is more like the following:  what's yours is marital, what's theirs is marital and what's joint is marital.  That's right.  Anything that was acquired during the marriage (with some limited exceptions) up to the date of separation is considered to be part of the marital estate and therefore subject to division as part of a divorce.  Your retirement that you earned during the marriage... marital.  The other spouse's savings account that was saved during the marriage... marital.  The equity in the house that was earned in part by one party's payment of the mortgage during the marriage... marital.  Again, there are some exceptions to this general rule, but the important thing to remember is that title of an asset alone does not determine whether it is subject to division or not.

Following orders for child support payments

Parents who are separated and/or divorced or never married who cooperate regarding their children should be commended.  Parents working together for the best interests of children is what helps our young people get through difficult situations in their lives.  When cooperation begins to happen regarding child support payments, it is important to keep in mind certain things.  If there is a support order in effect, the support order must be followed.  Even good faith deviations can have potentially significant consequences in the future.  For example, Parent A is ordered to pay Parent B $500 per month for child support.  School fees and soccer registration are due and Parent A pays $250; Parent B says thanks and you only owe me $250 for support this month.  And so the cooperation goes, on and on, for months and years... until according to the Court order, Parent A is now $5000 in arrears to Parent B.  Parent A says "I'm not behind, I've been paying $250 per month to soccer and $250 to Parent B per month."  The Court will not be able to recognize the non-conforming payments (i.e. the payments to soccer); Parent A will be expected to come up with the additional funds; and the cooperation that once existed will deteriorate.  If your cooperation results in deviations to existing child support orders, talk to an attorney about how to get a new support order in effect and minimize your risks of future unintended arrears and maximize the ongoing cooperation for the sake of your children.

IMPORTANT INFORMATION IF YOU TRAVEL WITH CHILDREN

Traveling with children for many families is a normal occurrence.  Trips to Disney World, trips to visit family in California or another state, trips for sports teams are among the common destinations.  In addition, our communities are comprised of many international families who seek to travel abroad to visit extended family or to expose their children to other parts of their heritage; and many families seek to travel internationally to introduce children to the vast array of cultural cities. 

Passport requirements for children must be met and they may take longer if families are separated, divorced, or other engaged in custody disputes.  The State Department has a wonderful website that provides significant information about international travel with children.  Plan ahead, plan early and check out their site at lhttp://travel.state.gov/passport/get/minors/minors_834.html

Protect Your Confidences

Protect your confidences

Meeting with your bible study group at a local coffee spot?  Talking with your counselor over a latte?  Be careful!  It is wonderful to have these types of resources available to help you through life's difficult moments, especially if you are dealing with separation, ,divorce, custody matters, etc.   However, be sensitive to the fact that your confidentiality in a public place where you can be seen and heard may be limited.  Do you know who is sitting at the table behind you?  Who is in line while you wait for your bagel and java?  If you knew that your spouse's divorce lawyer was enjoying breakfast just feet away, would your conversation change?  If it would, then you may not want to share those parts of life in those contexts.  We encourage our clients to have support systems in place, but choose carefully when and where you want to rely on them.

School Enrollment

School is about to begin; and students are starting to get their supplies, find out their teachers, and prepare for classes.

Parents who are in the process of separating or divorcing need to be mindful of the requirements of Virginia law regarding where a child can attend school.

If a parent moves out of a child’s school district, and that parent has custody of the child, the child has to change districts.  Agreement of the parents does not allow a deviation from this rule; courts do not have authority to deviate from this rule.

Therefore, if you are a parent who will have custody of a school aged child, you need to know what school districts are applicable if you choose to reside some where other than the marital residence.

Become Financially Knowledgeable

In follow up to our post last week, we remind you that it is important to be informed about finances.  You have the ability to get some documents yourself to get a start on the gathering process. If an account is a joint account, the institution in which the account is held should provide you with copies of statements for such joint accounts.  You may have to make the request in writing; you may have to go to a branch and provide identification; but you should be able to get the information.

Tax returns contain significant insight into a marriage’s financial picture.  If they are filed jointly, then you should be able to get a copy of it.  You may need to go to the IRS; you may need to complete paperwork such as Form 4506; and it may take some time, but you should be able to obtain the information.

Knowledge is an important step; it leads to informed decision making; and informed decision making is the backbone of any negotiations and/or litigation. 

Basic Estate Planning After Divorce

Recently, cases have been issued by the United States Supreme Court and the Virginia appellate courts addressing what happens when the parties’ divorce, a court order or agreement does not require the ex-spouse to be maintained as a beneciary of life insurance or retirement, but alas the spouse dies without changing his/her beneficiary from the ex-spouse.

It is important after a divorce to take steps to protect yourself in the event of your death.  Some steps include but are not limited to: (1) make sure your will is updated; (2) determine who you want to make health decisions and other decisions for you and review your advanced health care  directive and power of attorney accordingly; (3) update your HIPPA forms with your providers; (4) be sure all beneficiary designations and POD accounts have been changed.

Due Diligence and Knowledge Based Decision Making

Part of the separation and divorce process has to do with finances: spousal support, child support, distribution of assets and/or liabilites.   Some couples have shared information and decision making about finances during the marriage; they know each other’s income, they know the overall marital estate, they have equal access to financial documents.  Other couples allow one person to be in charge of the finances, to file the tax returns, to balance the checkbooks, and to make the investment/savings decisions.  Access to information is usually limited to that one spouse.

In trying to decide how to approach a separation, what steps to take to protect objectives, how to negotiate or even how to litigate, knowing the financial estate is key.

If you are the spouse who does not have the financial knowledge of the marriage, then you need to feel comfortable asking for the financial information (which can be done by your lawyer as well).  How can you know what you are gaining or what you are waiving without that information?

Making informed decisions is important as part of a separation.  Divorce is emotional; but emotions cannot cloud having all the information on which to base a decision.  Once an agreement is signed or once a court makes a determination, the terms are set; wishing or wondering if you missed something because you were scared to ask or you felt badly about wanting the separation so you didn’t ask is not an emotion you want to experience.

Lawyers are used to asking and are used to having their clients be asked; it is a normal and important part of the process. 

Tangible Personal Property

Throughout a marriage, couples can acquire many things: furniture, tvs, kitchenware, linens, jewelry, paintings, family photos, etc.  Some times these items serve a very functional purpose; other times they are sentimental parts of a marriage and family life.  Some items have monetary value and some items have no monetary value.  When a divorce or separation occurs, how are these assets handled?

First, from a practical standpoint, it is important to preserve the items whether by having possession of it or by making a photo/video log of it.  Second, for each item, how was it acquired: by gift from a spouse, by gift from a third party, as a purchase during the marriage, through an inheritance?  Third, what is its monetary value?  Remember, value is normally  assigned as of the date of the hearing/agreement.  It is not the value as of the date of acquisition; it is not the replacement value.  It is valued at yard sale or Craig’s list value unless you have an appraisal done that assigns it another value.

Personal property can be a last battleground; and it can be an expensive one.  It is filled with emotion.  However, it can be resolved.  Be careful how you choose to fight this battle; and consult with a family law attorney when assistance is needed.

Vacations and Summertime

It’s hard to believe another summer is almost gone; and it’s harder to believe that you should start thinking about next year’s summer sooner rather than later, especially if you have children and are separated/divorced. 

Many custody orders/agreements allow each parent time for summer vacation.  Most orders/agreements  give one parent the chance to choose his or her week(s) before the other parent; and in order to allow the subsequent parent time to plan, the first deadline to choose week(s) can be as early as March.

Summer plans further should take into consideration camps that children may do for fun, for academics, for sports.  Therefore, trying to schedule vacations in conjunction with these activities takes advanced planning. Many camp schedules start coming out in January and February and being on the lookout for these schedules can be very helpful.

So pack up those beach chairs, and get out your calendars.  Next year’s vacation will be here before you know it.

College Expenses

Now is the time of year when many children head off to college; or you may have children who are starting to look at colleges for the upcoming application process.  Virginia law generally does not require parents to provide financial support or assistance for college tuition, room, board, books, etc.   Child support in most cases ends upon graduation from high school.

Parents who are separated and/or divorced some times are in agreement as to whether they should provide financial help for college.  However, even where parents may agree conceptually with what their responsibilities should be, they disagree about what should be put in writing.

Unless terms of paying for a child’s college expenses are in writing, the Courts cannot enforce any other agreements.  Before you execute an agreement pertaining to your separation, divorce, property, support and custody, you should consider the following:

Do you want a firm, contractual obligation by which both parents will be held accountable?  Do you want to contribute proportionate to incomes?  Do you want it to be limited to a certain amount or be based on Virginia state tuition, room and board?  Do you want the number of years limited?  Do you want to require application for financial aid, student loans and/or scholarships?  How do you want to handle the use of a Virginia Prepaid Education Plan?  How do you want to use 529 plans and how do you want to handle ongoing contributions?

College may even seem like it is far off, but ti is not too early to consider whether you as parents will take any financial role.

Staying Together

For many people, making their marriages work is one of life’s great challenges.
A recent article in the Wall Street Journal entitled, "The Divorcé's Guide to Marriage" included tips from a study of divorced persons who felt they had learned from their mistakes in marriage. The article gave 4 tips on the best ways to stay together:
1. Boost your spouse's mood.
2. Reveal more about yourself.
3. Talk more about money.
4. Get over the past.
As the article points out "this is advice learned the hard way."

This article was written by Phoebe P. Hall. Managing Partner/Attorney, Hall & Hall, PLC, 1401 Huguenot Road, Suite 100, Midlothian, VA 23113, and 4323 Cox Road, Suite 100, Glen Allen, VA 23060, Tel: (804) 897-1515, Fax (804) 897-2499

Marital Debt vs. Separate Debt

In our last blog, we talked about the nature of assets; and in fact, many separated spouses want to focus on division of assets.  But what about debt?

Prior to July 1, 2011 the Virginia Code did not specifically address the classification of debts as martial or separate as it defined the assets of the parties, and the presumption was that all debt acquired during the marriage was marital debt.

Beginning July 1, 2011, Section 20-107.3(A) specifically addresses the classification of debt and provides that the court must determine whether the debt is marital or separate, and provides the court with definitions of what those classifications are and the presumptions the Court must use when determining how the debt should be treated.  The statute now provides that the Court has the authority to find a debt separate debt, even if incurred during the marriage, if it can be proven that the debt was incurred for non-marital purposes. 

Debts that particularly can create areas for dispute and discussion include credit card debts, student loans and personal loans because often those funds are used for a variety of purposes compared to first mortgages or car loans whose purposes can sometimes be more clearly determined.

Liquidity in Equitable Distribution

If you are contemplating or if you have started the process of  separation or divorce, you may have heard the term equitable distribution.   Simply put, this term is the concept of how assets and liabilities will be apportioned.  In this blog, we want you to be aware that not all assets are the same.  Cash or funds from bank accounts  are the most liquid; they do not have tax consequences; what you see is what you get; you can get at them immediately.  A house, other the hand, that is sold will have proceeds reduced by commission, closing costs, etc.  A house that is transferred has other transactional costs and carries with it the cost basis so that when it is sold in the future, any tax consequences may be figured.   Compare those assets to stock or investment accounts that have capital gain taxes when the asset is sold for cash.  Retirement accounts such as IRAs and 401ks not only have tax consequences but also have restrictions as to when they can be taken out of the account without additional penalties.  When considering divisions of assets in a separation or divorce, understanding the nature of your assets is important so that apples are divided with apples or other considerations are made for an apple and orange exchange.

Options for the Marital Residence

For couples going through a separation or divorce, the marital residence and what happens to it can have big financial and emotional aspects to it.  Historically, there were three choices for a marital residence: (1) the Wife retains it and pays Husband for a share of the equity; (2) the Husband retains it and pays Wife for a share of the equity; or (3) it is sold.

Under options (1) or (2), it was customary for the retaining spouse to either to refinance the mortgage(s) or have a deed of assumption whereby the retaining spouse assumed the mortgage(s).  However, with the ever-changing requirements of the mortgage industry, more and more spouses are unable to meet the criteria in order to refinance or assume the mortgage.  They do not have sufficient liquid funds to pay an additional down payment where the house may be underwater; they do not have the requisite income; they have too much other debt, etc.

The previous option for spouses who were unable to refinance or assume the mortgages was to place the house on the market for sale and then divide the net proceeds.  Today, unfortunately, houses may have no equity, and/or the parties do not want to sell. 

For settlement purposes, spouses can discuss allowing one party to stay in the house and can make an agreement on how mortgages are paid and can make an agreement on how the other spouse gets paid for his/her share of equity.  If this is a course you are considering, it is important to consult with a family law attorney and a real estate attorney to make sure that the agreement is drafted in a manner to try to protect co-debtors of a note, to try to protect in the event of death, to try to protect against further judgments being secured by the house because once a divorce is entered, your rights in real estate can change.

There are many different opinions about if and when the real estate market will turn around and housing prices will increase. Making sure that you have set out a plan that takes into account a long term view is important and understanding the intentional and unintentional consequences of  your actions are essential.

Importance of Financial Planning

Most people enter into marriage with a strong sense of commitment, expecting that their marriage will last “until death us do part”.  Sometimes, however, despite their best intentions, a couple ends up in a separation or divorce.   Financial disagreement is a source of many separations and divorces.  One protection for the parties in a marriage is for each party to understand and know about the finances, keep their spending and debts under control, maximize their income, and plan for savings and investments.  Stay informed about what income is being brought into the household, what expenses are being incurred and what is being saved.  Communicate and try to reach a mutual understanding of your goals for today and tomorrow.

    Good financial planning is the key to your financial future; nowadays there are many resources on financial planning from basic budgeting to saving for college and retirement. Too often we see financial planning that is reactionary, triggered by divorce, a job change, children approaching college age, or the approach of retirement.  Don’t wait to do your planning until one of these events occurs if you want to be ahead of the game.

    People who work from a budget are more likely to manage their finances well than people who just spend what they feel they need to without regard to where the money will come from to pay their bills.  In separation and divorce, we frequently are faced with couples who were living beyond what their combined incomes could sustain during the marriage; and then they are overwhelmed by the reality of how that same income now must be used for two households

    In one of our upcoming blogs, we will give you some tips on how to budget.  Being knowledgeable about finances is important whether you are single, married, divorced or widowed. 

Economic Layoffs

It is not news to our readers that the economy continues to be turbulent with unemployment rates still high, ongoing layoffs throughout the area, and a housing market that is slow to recover.    Financial difficulties that couples must address in this environment are heightened and where separation or divorce is a component, the financial woes are further escalated.  One cannot live as easily as two.

A spouse who has stayed home to care for children may find it difficult to obtain employment.  A spouse who has historically worked may be laid off.  How will bills for the marital residence be paid and how will bills for a separate residence be handled?  Courts can make orders of child support, spousal support, payment toward the maintenance of assets.  Spouses can try to work out an arrangement on their own.  While each spouse may feel that they are entitled to live at the same standard of living, this is not necessarily possible if economic layoffs have hit your family and it will be important to look at what expenses can be cut.

Some financial planners now are becoming trained in helping couples, together or separate, to manage household expenses.  Consulting with one of those professionals may be helpful.  Considering options for debt consolidation may also be helpful.

 Refinancing where economic layoffs have occurred may not be possible.  Investigating options about how to pay the mortgage will be important.

In times of economic layoffs, understanding your own options for education, training, and possible changing careers paths should be gained.

Economic layoffs coupled with a separation or divorce can make times seem unmanageable; having a good support system in place will be important.

What happens to your power of attorney is someone files for custody or vistation or for separate maintenance?

Many married couples created powers of attorney (POAs) during their marriages which they would not want the other person to use in the event of separation or divorce. There is a new law that goes into effect in Virginia July 1, 2012 which provides that unless the power of attorney states otherwise, a power of attorney naming the spouse as the agent is automatically revoked by operation of law if either person in the couple files for custody or visitation or for separate maintenance.

This article was written by Phoebe P. Hall. Managing Partner/Attorney, Hall & Hall, PLC, 1401 Huguenot Road, Suite 100, Midlothian, VA 23113, and 4323 Cox Road, Suite 100, Glen Allen, VA 23060, Tel: (804) 897-1515, Fax (804) 897-2499

The information you obtain at this site relates to Virginia law only. It is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Walt Disney

We salute Walt Disney Company for its announcement on Tuesday that starting in 2015 (due to existing contracts) the company will be supporting the help to fight childhood obesity. Disney has imposed new standards on food advertising on the company-owned tv stations, radio stations, and websites. By doing this, children will be less exposed to junk-food ads while watching children programs. Along with this they have agreed to sponsor public service announcements promoting healthy eating choices and exercise to children. The company also will begin selling Disney food products, that meet its nutritional criteria, in grocery stores. The criteria includes lower calories, saturated fats, sodium and sugar. These products will display the Disney logo. The company has also stated that it will improve the food that is served at its theme parks. Many hope that with Disney doing this it will set an example for other large companies whose audiences are children.

This is just one of a number of steps that have been taken recently to promote healthier lifestyles in the United States. Over a year ago first lady, Michelle Obama began her campaign "Let’s Move" to help fight childhood obesity. The first lady supported this announcement by stating, "Disney is doing what no major media company has ever done before in the United States, and what I hope every company will do going forward. When it comes to the ads they show and the food they sell, they're asking themselves one simple question: 'Is this good for our kids?'"

Another step that recently was taken in May was that Mayor Bloomberg of New York City proposed a ban on sodas and sugary drinks larger than 16 ounces being sold in restaurants and at evenst in New York City.

As family law attorneys working with parents struggling to raise their children well, we are seeing an increasing concern about childhood obesity. It is exciting to see public officials and large corporations taking on this problem in a constructive way.

This article was written by Phoebe P. Hall. Managing Partner/Attorney, Hall & Hall, PLC, 1401 Huguenot Road, Suite 100, Midlothian, VA 23113, and 4323 Cox Road, Suite 100, Glen Allen, VA 23060, Tel: (804) 897-1515, Fax (804) 897-2499

 

Division of a 401(k): A Risky Area

People who come to see us always have questions about their 401(ks)s. This often is the most significant asset to be divided in a divorce. It is a risky area because there are so many choices, and a lack of knowledge could adversely affect the size of a person’s share. It is critically important to get good advice and good craftsmanship. Couple are free to divide the account as they choose, or to allocate it all to one spouse. In most cases where the couple cannot reach an agreement, the court will divide the "martial portion" equally, but it is not required to do so. What looks like an equal division may not be as it seems depending on the wording used, so the agreement and order must be expertly drawn. The marital portion is the part earned during the marriage. The method for dividing defined contribution plans such as 401(k)s or 403(b)s is to utilize a Qualified Domestic Relations Order ("QDRO"). The QDRO will order the division according to the method and amount chosen by the parties or by the court. This can be a dollar amount or a percentage of the benefit. When a loan has been taken out against the 401(k) this must be taken into account in the order or agreement, and care should be taken not to allow further loans or withdrawals until the money is divided. The matter of survivor benefits is another important aspect of the division. The drafting of a QDRO is a highly complex job. There are numerous choices that go into how various terms are worded which can make a significant difference in each person’s share, and the requirements of the individual Plan Administrator must be taken into account. Merely utilizing the plan’s sample QDRO is not sufficient, as the document should be carefully crafted to meet the specific needs of the parties involved, with careful choices regarding optional terms to protect rights in this key asset division.

This article was written by Phoebe P. Hall. Managing Partner/Attorney, Hall & Hall, PLC, 1401 Huguenot Road, Suite 100, Midlothian, VA 23113, and 4323 Cox Road, Suite 100, Glen Allen, VA 23060, Tel: (804) 897-1515, Fax (804) 897-2499

The information you obtain at this site relates to Virginia law only. It is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Hiding Money in Divorce

     Clients going through divorce often worry that their spouse may be hiding assets. A recent article in the Wall Street Journal talks about why this has become much harder to accomplish successfully. As the article points out, " Thanks to technology, hidden marital assets may be just a few clicks away". Facebook is the top source of compromising evidence. Smart phones provide a great deal of information. Technology makes it possible to examine spouses' email and text messages, their web searching histories, their facebook pages, their photos, their twitter accounts, their online financial accounts. The technology posses challenges for both the hider and the finder of information. The law about what type of search is legal is still evolving. For example, it is legal to do a public Google search on a spouse, but it can be illegal to use a false name to search someone's private facebook account. Other issues relate to installing a GPS on someone's car or installing keystroke monitoring on their computer. Issues arise about whether the information was publicly on a family computer or in a family vehicle or a phone on a family plan or whether it was in an individual account password protected. There are state specific laws about how a person is permitted to obtain information and documentation and whether or not information can be use as evidence depending on how it was obtained. As family law attorneys, we often are called upon to advise clients as to what they are and are not permitted to do or permitted to use as evidence under Federal and Virginia law.

This article was written by Phoebe P. Hall. Managing Partner/Attorney, Hall & Hall, PLC, 1401 Huguenot Road, Suite 100, Midlothian, VA 23113, and 4323 Cox Road, Suite 100, Glen Allen, VA 23060, Tel: (804) 897-1515, Fax (804) 897-2499

The information you obtain at this site relates to Virginia law only. It is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Tax Time

Tax time is rapidly approaching and having the proper tax professionals advising you during a separation or divorce is important.  Having those tax professionals working in conjunction with your attorney is a beneficial partnership as well.  Frequent questions that we hear and that are important to ask your tax advisor include:  Is my spousal support taxable or tax deductible?  Is child support taxable or tax deductible?  Who can claim the children as dependents for tax purposes?  Are any portion of my attorney fees tax deductible?  Who can claim the mortgage interest on the marital residence during a separation?  If I received retirement benefits from my spouse, do I owe taxes?  We are not divorced but we are separated, how should we file?  How should tax liabilities and/or tax refunds be allocated?  Understanding the financial impact of taxes on the overall divorce/separation scenario is a key component of negotiating and/or presenting a case to a court to decide.  Partnering with the right tax professional and attorney can help.

New Laws

The Virginia General Assembly has been hard at work this session and has enacted some  laws that impact citizens who are going through a separation, divorce, support matters, custody matters, etc.  One example is a new law that will be effective this year that provides " the court may enter a qualified domestic relations order or other order for the purpose of enforcing a support order by attaching or garnishing any pension, profit-sharing, or deferred compensation plan or retirement benefits pursuant to the United States Internal Revenue Code or other applicable federal laws."  This remedy is significant for those on either side of a support obligation and consultation with an attorney may be beneficial.

Discovery

"Discovery" and "subpoenas" are two terms that are used frequently by clients who are seeking information from the other party.  These two terms require that a legal court action is pending whether for divorce, support, custody, child support.  In Circuit Court actions, discovery is a broad term to include but not be limited to interrogatories (questions to a party), requests for production of documents to a party, subpoena duces tecum (requests for documents from a non-party), etc.  They are served and there is a rule of how long the person/entity has to respond.  In Juvenile and Domestic Relations Cases, some discovery requires a court order permitting it before it can be sent.

In negotiations, discovery cannot be used if no court action is pending.  At that point, it is up to the parties to engage in voluntary, cooperative disclosure.