How Can I Be Successful In 2015

Empowering people is part of why I do family law and why I am proud to help bring this program to our community.

How Do I Make My Marriage Stronger?

Believe it or not, even as divorce attorneys, when we meet with people who want information about worse case scenarios if a separation occurs, those folks still want their marriage to work.  They seek legal advice to protect themselves, but they really don't want to be in our offices.  So, we get ready to ring in 2015, here are some tips we have compiled to help if you feel your marriage could be stronger:

1.  Make time for you as a couple.  Make arrangements for the kids and then go to the movies, out for dinner, for a walk, etc.  Too often we get consumed with the pressures and commitments of work, shuttling the kids to activities, etc.  Time out for you is important.

2.  Appreciate what you each bring to the relationship, even when it is different from your spouse.  The ying and yang of a couple can make a dynamic system.

3.  Know your household finances and talk about financial goals.  One of the most common stressors in a marriage is money.   Understanding what you each make, how it is used for expenses, what is being saved, what your long term future may look like helps you each feel like you have a part to play.

4.  Make time for you.  Yes, you.  We all have lots of responsibilities with jobs (inside and outside the household), other family members, etc.  Having time for yourself to recharge makes you better.

5.  Seek counseling.  Marriage is hard work; raising kids is hard work; balancing everything in life is hard work.  It's ok if you need to have others help you.  Be sure if you need counseling to find the right person and the right speciality (individual counseling, marriage counseling, co-parenting counseling are three distinct areas and professionals in these areas have distinct training; it is not necessarily an all-in-one approach so do your research).

6.  Know your rights as a spouse and as a parent.  So many resources are available on line, through friends, etc. on what you should do, can do, shouldn't do, can't do if your marriage is in trouble.  If you get to that stage, seek advice through qualified, experienced professionals including family law attorneys.

How should I file taxes if I'm divorced or separated?

Here are some pointers that you may want to discuss with your lawyer and/or your accountant when separating from your spouse or getting a divorce.

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

Child custody and holidays

Holidays can be the best of times or the worst of times; and during a separation or after a divorce, the unique issues that face parents dealing with child custody tend to come to a head.  Family traditions are important and navigating how to structure new traditions can be difficult.  Where should a child wake up on Christmas Day?  Should that be alternated each year?  How can travel out of town during the holidays be accommodated and still allow the other parent time to spend with children near special days?  If one parent had Thanksgiving, who should get the next holiday?  Can the exact day be shared comparably?  These are questions that separated/divorced parents have to figure out.  Some can do it on their own; some can do it with the help of a co-parenting counselor; some need the assistance of attorneys or mediators; some will try to have a Court decide.  Our children grow up quickly; and the times of wide-eyed surprise on Christmas morning can vanish in a blink if parents are stuck in litigation and waiting for others to make the decisions for them.  Try to work out the holidays, look at how you can set the example for your children in making days and seasons special for them.  Understand that if you need professionals to help, advance discussions are important so that the plans can be made well ahead of time and the season/day itself can be focused on being together, celebrating, loving, and creating good memories.  Happy Holidays to all of our clients, colleagues, readers, and friends.

Same Sex Marriage and Children

Last week, I posted about some potential areas of the law that may need examination to be consistent with the recent court rulings that allow same sex marriages to proceed in Virginia. Children and child custody is another area of the law where rights to custody, decision making, and visitation start with the premise that the two parents who are married are the biological parents. While there are provisions in the code about parental status in assisted reproduction matters and there are provisions in other parts of the law about who else has a legitimate interest to legal and physical custody rights regarding a child, the burden of proof can be different if a person is not a biological parent and can pose a large hurdle for the non-biological (even if married) parent. If you are married and have a child together, consultation with a family law attorney about how to memorialize your rights and desires about your child in the event of divorce or death is important. If you are not yet married but are engaged or considering marriage, talking to a family law attorney about how a prenuptial agreement can help protect your intentions if children are part of your future family is a good step to take.

Real Estate Issues in Same Sex Marriages

There has been a lot of celebrating in the past few weeks with the US Supreme Court’s decision not to hear Virginia’s same sex marriage case, thereby leaving same sex marriage in Virginia to proceed full steam ahead. With this momentous decision, however, same sex couples need to understand where some of the law has not caught up yet. Real estate is a good example. The way property is owned as a husband and wife provides the married couple additional protections in death and debt. Below is the current statute:

§ 55-20.2. Tenants by the entireties in real and personal property; certain trusts.

A. Any husband and wife may own real or personal property as tenants by the entireties. Personal property may be owned as tenants by the entireties whether or not the personal property represents the proceeds of the sale of real property. An intent that the part of the one dying should belong to the other shall be manifest from a designation of a husband and wife as "tenants by the entireties" or "tenants by the entirety."

B. Any property of a husband and wife that is held by them as tenants by the entireties and conveyed to their joint revocable or irrevocable trusts, or to their separate revocable or irrevocable trusts, shall have the same immunity from the claims of their separate creditors as it would if it had remained a tenancy by the entirety, so long as (i) they remain husband and wife, (ii) it continues to be held in the trust or trusts, and (iii) it continues to be their property.

(2001, c. 718; 2006, c. 281.)

Importantly, the statute is referenced assuming a man and woman are married. Therefore, the question arises of whether a same sex couple who gets married and then purchases property gets this same level of protection. Careful consultation with a family law attorney and real estate attorney is important.

What does the US Supreme Court decision today mean for same-sex marriage in Virginia?

MARRIAGE EQUALITY IN VIRGINIA FOR SAME-SEX COUPLES: On October 6, 2014, the Supreme Court denied review of seven Federal Circuit Court rulings (from the Tenth, Seventh, and Fourth Circuits) that held state bans on same-sex marriage violated the U.S. Constitution. In denying review, the Supreme Court has effectively allowed those favorable rulings to stand. This means  Virginia will soon be added to the list of states allowing same-sex marriage and that the stay previously issued will be lifted very soon, if not today. 

What does this mean for Virginia residents? The decision of the Fourth Circuit Federal Court of Appeals will stand and same sex marriages will now be performed in and recognized in the Commonwealth of Virginia.



This decision has important impact on both couples who were married previously in jurisdictions other than Virginia and on couples now considering marriage in Virginia.  Consider consulting a family law attorney to be sure you understand your rights that come with this landmark development.

How should I prepare for my meeting with my divorce attorney?

By Gwen M. Massie, Esquire -- Hall and Hall, PLC

When you are going through a divorce or in a custody battle, it is understandable that you find yourself operating in “crisis mode.” Your mind is probably going in a million different directions, you think of questions in the middle of the night, and analyze every situation.  We do our best to answer your questions and advise you during this time.  In preparing for a meeting with your attorney, here are a list of pointers to help the meeting go smoothly and help get all your questions answered:

    1) Set up a meeting a few days or a week away so that you have time to prepare your questions and don’t forget anything; be sure to write them down.

    2) Talk to friends and family members and see if they have any questions or can help you come up with a list of things to discuss with your attorney

    3) Read through any materials your attorney has already provided to make sure that doesn’t spark additional questions

    4) Bring your list of written questions and a notebook to write down the attorney’s answers so you can refer to it later

    5) Let the attorney know if you process information a certain way; for example, you are a visual learner and need to look at what you are discussing with your attorney in order to understand it.  This will help the attorney prepare for the meeting.

What can be income for child support?

Recently, the Court of Appeals of Virginia, in Oley v. Branch, a case of first impression, found that income from a Federal Pell Grant counted as income to a party for the purposes of determining child support.  Despite argument that this money was to be used for the party's education where Federal Pell Grants are issued "to help financially needy students meet the cost of their postsecondary education," the Court considered that Federal Pell Grants are not limited to the payment of tuition, and may also be used to pay the costs of room and board, books, and services. The Court also looked to Virginia Code section 20-108.2,  which defines gross income for the purposes of calculating child support, and to the case law.  In Frazer v. Frazer, the Court previously held that "Under Code § 20-108.2(C), gross income includes 'all income from all sources,' and unless specifically excluded, any income from any source is subject to inclusion."  23 Va. App. 358, 378, 477 S.E.2d 290, 299-300 (1996).  Other governmental assistance programs are specifically excluded under Code 20-108.2(C), such as supplemental security income benefits.  However, the Court concluded that the Federal Pell Grant does not fall into any of the exceptions, and is not specifically named as an exception. Therefore because the Code does not specifically exclude federal education grants, like the Pell Grant in this case, the Court found that they are to be considered income for purposes of support.

How to Plan Your Divorce - Richmond Times-Dispatch: Richmond, Virginia News, Sports, Politics, Classifieds And Commentary

How to Plan Your Divorce - Richmond Times-Dispatch: Richmond, Virginia News, Sports, Politics, Classifieds And Commentary

Supreme Court puts hold on same-sex marriages in Virginia - Richmond Times-Dispatch: Virginia Politics

Supreme Court puts hold on same-sex marriages in Virginia - Richmond Times-Dispatch: Virginia Politics

Co-parenting

We are again pleased to be part of Richmond Family Magazine with great articles, information, and ideas. Thanks to them for keeping this publication available to our community!

http://richmondfamilymagazine.com/rfm-community/test-co-parenting-skills-divorce

Appeals court: Gay marriages in Va. can begin next week - Richmond Times-Dispatch: Local Government & Politics

Appeals court: Gay marriages in Va. can begin next week - Richmond Times-Dispatch: Local Government & Politics

Pots, pans and other personal property in a divorce

Separation and divorce are difficult.   There are the emotions that go with the process that track the stages of loss and grieving.  If there are children, individuals have to determine how they are going to share time and parenting.  If there are assets like a house, financial accounts, or retirement, parties have to decide how those are going to be divided.  If there is debt, people have to determine how that will be paid.  Whew... that's a lot.   And then, people have to decide who gets what in the house:  the dining room suite; the bedroom furniture; the china, crystal and silver; the tools; the things in the attic; the pots and pans, etc.  We see so often that the division of personal property becomes the last battleground, the last place to play out the emotions of the divorce.  Some personal property has sentimental value; some personal property has monetary value; some personal property has minimal value.  People going through the process need to be careful in evaluating what to fight for -- is the value of the personal property item worth the cost in attorney fees?  Can it be replaced or is it one of kind?  Is the cost to replace the item less than the cost in attorney fees?  Do you have a need for the item after separation?  Do you have room for the item after separation?  Or does the fight over the item represent a show of control or something else? Value to the individual owner does not necessarily equate to value as determined by a Court.  Understanding all aspects of the division of tangible personal property to make good decisions is important.

Alternatives to Divorce Litigation

Did you know? If you are faced with divorce litigation in Virginia where a case has been filed, an option for alternative dispute resolution is the Virginia Judicial Settlement Conference program.
http://www.courts.state.va.us/courtadmin/aoc/djs/programs/jsc/home.html

Same Sex Marriage developments

Appeals court rejects Virginia same-sex marriage ban

http://www.cnn.com/2014/07/28/politics/same-sex-ban-virginia/index.html?iref=allsearch

A good reminder

The Divorce Mistakes You Don't Even Know You're Making

http://www.huffingtonpost.com/2014/03/18/divorce-social-media_n_4915118.html

Suddenly single: Boomers lead the way in silver divorces - Richmond Times-Dispatch: Richmond Arts, Entertainment & Lifestyle

Suddenly single: Boomers lead the way in silver divorces - Richmond Times-Dispatch: Richmond Arts, Entertainment & Lifestyle

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

Premarital assets

People are getting married at an older age these days.   As a result, some spouses come in to a marriage with savings, with retirement, with a house.  If and/or how these assets are used during the marriage, are kept separate, are used but can be traced out, or are mixed in (commingled) can make a difference in how they are treated during a separation/divorce/equitable distribution.  It is important for your attorney to know information about such assets that either you or spouse have owned. Documents showing what existed at the date of marriage can be vital to help your lawyer have a picture of what may be subject to distribution.

Getting your financial ducks in a row

As readers may know, sharing interesting other interesting blogs can some times offer additional help.  Although this one seems geared toward women, it really has advice for either spouse trying to prepare for dealing with a separation/divorce.
http://www.forbes.com/sites/jefflanders/2011/04/07/welcome-to-divorce-dollars-and-sense/

Power of negotiation

Divorce, custody, spousal support and dividing property can be issues that bring a lot of emotion to the table:  anger, fear, sadness, anxiety.  Courts have the authority to make decisions where the people involved cannot reach agreements, but negotiations that lead to a settlement can often be a more productive path.  If you are entering negotiations, it is important to understand some aspects of it:
1.  Each person may be at a different emotional stage of the separation/divorce.  The stage of each person may impact what he or she is ready to address or consider.
2.  Each person may have a different level of knowledge about the financial aspects of the marriage.  Disclosure is important.
3.  Even productive negotiations take time, and an immediate agreement may not be reached with the first exchange.
4.   If your effort to negotiate does not receive any response, talk to your attorney about next options. 

Health insurance can be important during a separation or divorce

In  many families, one spouse/parent covers the health insurance for the children and spouse.  One spouse may not have health insurance available or one spouse's plan may be better than the next.  Often, during  a separation, the carrying spouse wants to take the other spouse off the policy.  This decision can have costly consequences, especially if the other spouse is not aware of being removed.  Although open enrollment periods allow a time when a spouse can be removed, and some people think it will save money, unreimbursed medical expenses can be more expensive than the monthly premium and a Court could possibly order the other spouse to pay them.  So, if you are the spouse who provides the family health insurance coverage, talk to your attorney before making any major changes  to the policy and who is insured. 

Child support ideas

Child support can be a source of much dispute in family law.  In Virginia, we have statutory guidelines that give us a presumption based information including gross income of parties, cost of health insurance for the child, cost of child care, and custodial time. So why all the argument.  Payor parents want to support their children, for the most part; but they don't like feeling as if child support is being used to support their ex-spouse/ex-partner.  Assuming that the monthly support meets the child's daily needs, a creative option that some parents consider for amounts that are disputed as being more than what the child has for daily needs is determining whether some part of child support could be contributed to a 529 for the benefit of the child:  the payor parent feels like the money is designated and the recipient parent feels like the child benefits.  It could be a win-win.  This kind of out of the box option is something to discuss with your attorney; there may be other alternative ideas on how to make child support work for everyone, especially the kids.

I'm getting a divorce. Do we have to fight it out in Court?

Divorce is a highly emotional topic for many people.  People may reach the decision to divorce mutually based on calm discussions while other people may be facing a divorce based on the decision or action of one spouse.   Court some times is necessary, but it is not always.  Other types of resolution methods can be used to try to reach agreements regarding custody, support, division of property.  Mediation is one alternative method:  mediators may be attorneys, retired judges, or other individuals who are trained in how to be a mediator.  A mediator is a neutral, third party who does not take sides and does not represent one party.  Collaborative law is another form of dispute resolution where each party is represented by an attorney who is trained in this approach.  Negotiations can be another way to resolve matters without litigation.  Talk to an attorney about your objectives, ask questions about different ways to try to reach resolution on the issues that confront your family. 

Sole custody and access to information about my children

If  my spouse has sole legal custody, can I still get information about my children's education, medical treatment, etc?   Under Virginia Code 20-124.6, you can still have access to medical records or school records unless a court orders otherwise for good cause shown.

Visitation and child support

"He's never on time with his child support payments."
"She's always forgetting to mail my child support check."
So, the question follows, can I withhold visitation?
The answer is no.  Visitation and child support payments are two separate and distinct concepts; you cannot withhold visitation in order to enforce timely and complete support payments.  There are actions to take if child support is an issue: seeking a wage withholding order (commonly referred to as a garnishment); seeking contempt relief; etc.   You should consult with your attorney if your child support payments are not being made according to a court order so you can weigh your options.  Withholding visitation, unfortunately, could just subject you to a show cause/contempt proceeding and not result in receiving child support on time or in full.

Prenuptial agreements ("prenups") may deserve another look

We have done articles, blogs, and presentations on prenups.  Depending on your own individual circumstances, there may be advantages to talking to an attorney about one.http://www.aaml.org/about-the-academy/press/aaml-in-the-news/pre-post-nuptial-agreements/growing-popularity-prenup

Custody and holidays

Thanksgiving, Christmas, Hanukkah are only some of the holidays that are considered in custody arrangements.  In our line of work dealing with custody disputes, seeking to help parents reach a mutually acceptable co-parenting agreement, or bringing the matter before a Court where another resolution is not possible, we see a lot of emphasis also put on Mother's Day, Father's Day, and birthdays.    All holidays that a family celebrate are important; and during a separation and divorce,  holidays can take on extra emphasis.  Summer vacation, Memorial Day, Labor Day, and Halloween are other times that tend to be put into parenting agreements.  It can be very difficult to think about having to share holidays or to miss having your children on a specific holiday.  Courts do their best if asked to make the decision; but it's important for parents to try to figure out a way to make these times work for everyone, to consider creating new traditions based on a new parenting schedule.  Parenting counselors can some times assist.  If you are separated or facing separation or divorce, advance planning and discussion with your counselor or attorney can be a good way to avoid added difficulty in dealing with this situation.   

Child support and spousal support while case is pending

If you have a family law matter that is in litigation, then it may be possible for you to seek child support or spousal support while the case is pending ("pendente lite").    It is important for you to evaluate this option with your attorney so you can decide if and when to file a motion asking for this relief.  Hearings in the Richmond metropolitan area courts can take several weeks to get scheduled, and can take even longer if there is counsel on the other side.  You, therefore, also want to talk to your attorney about how to meet expenses prior to any hearing on your request for temporary support.