Estate Planning: New Year, New Law

The Virginia legislature has passed new laws which impact estate planning for married people. The “elective share” statute provides a spouse with a share of the other spouse’s estate upon his death; it is a right descended from common law, which has existed for hundreds of years to protect a spouse from disinheritance. So, even if a wife executes a will leaving her entire estate to an adult child, the husband can still claim a percentage of her estate. For a spouse who dies before January 1, 2017, that percentage equals 1/3 of the estate if the decedent left surviving children or ½ of the estate if there are no children. For a spouse who dies after January 1, 2017, the percentage his or her spouse could claim equals up to 50% regardless of whether or not the decedent has any surviving children. See Virginia Code Ann. §64.2-308.2 (1950 as amended). The new law considers marriage as more of a financial partnership, as opposed to a union where one spouse may need to be protected. One key aspect of the law is the sliding scale for determining the elective share, based on the length of the parties’ marriage: Less than 1 year 3% 1 year but less than 2 years 6% 2 years but less than 3 years 12% 3 years but less than 4 years 18% 4 years but less than 5 years 24% 5 years but less than 6 years 30% 6 years but less than 7 years 36% 7 years but less than 8 years 42% 8 years but less than 9 years 48% 9 years but...

Can I pay temporary child or spousal support from our savings?

When you are going through a divorce, saving as much of the marital assets (such as your checking and savings account) can be critical to most people.  Meanwhile, the spouse responsible for paying support has to figure out how to pay his/her regular bills, possibly for two residences, plus the added expenses for attorney’s fees and support (either child or spousal support) pending the final divorce hearing.  Can you use the money in your joint checking account to pay spousal support? What about from the joint savings account? Or, does it have to be paid from your current income/salary? Or, the spouse who is receiving support may be concerned about the source of funds being used to pay her temporary spousal support (“alimony”). Can your spouse use marital assets to pay you?  What if this would leave nothing in your savings account by the time the final divorce hearing arrives? Effective on July 1, 2016, the Virginia legislature passed a new law to address these concerns. Specifically, Virginia Code § 20-103 was modified to include the following: “A1. Any award or order made by the court pursuant to subsection A shall be paid from the post-separation income of the obligor unless the court, for good cause shown, orders otherwise. Upon the request of either party, the court may identify and state in such order or award the specific source from which the financial obligation imposed is to be paid.”  In short, the statute now requires that any temporary support (i.e., child support or spousal support) must be paid from a person’s income earned after the parties’ date of separation,...

What about Fido? Protective Orders and Pet Custody in Virginia.

As family law lawyers in Leesburg, Virginia, we are often asked questions about pet custody in Virginia.  We are also often in the position of seeking protective orders on behalf of our clients and defending our clients against malicious protective orders.  Some new changes in the law have created an area where protective orders and pet custody in Virginia merge. As we have stated previously regarding protective orders, they are a vital tool in protecting victims of violence and abuse or potential victims from threatened violence or abuse. Sometimes, however, protective orders are used as a negotiating tactic at the beginning stages of a divorce proceeding. Whether it is an emergency protective order, preliminary protective order, or permanent protective order, the issuance of one can dramatically affect one’s life. A party need only present testimony to a magistrate of an alleged incident in order to obtain an Emergency Protective Order.  This is an ex parte proceeding, which means that the accused does not have the right to appear.  These Emergency Protective Orders usually last up to 72 hours.  They are followed by a Preliminary Protective order, which is also an ex parte Order which lasts for about 2 weeks. At the end of that period, there will be a hearing (with all parties having the right to be present) for a Permanent Protective Order, which lasts for up to two years.  The Petitioner (the person requesting the protective order) may be granted certain relief through any Protective Order pursuant to Va. Code Ann. §16.1-253.1, such as: Right to exclusive use and possession of the home to the exclusion of the other party; Right to...

How long do I Have to be Separated before I Can Get a Divorce in Virginia?

How long do I Have to be Separated before I Can Get a Divorce in Virginia?  The quick answer is that it depends but most likely you will have to be separated for one year.  There are a few exceptions discussed below. Virginia, like many states and commonwealths, requires that you be separated for a period of time before you and your spouse can get a divorce.  In Virginia, you must have grounds to obtain an absolute divorce, also called a divorce from the bonds of matrimony or a divorce a vinculo matrimonii.  The grounds for a divorce from the bonds of matrimony are set out in Virginia Code Ann. § 20-91.  There are grounds that we call “fault based” grounds, such as adultery and cruelty, and there are also grounds that we call “no fault” grounds, which include a separation without cohabitation and without interruption for a certain period of time. Generally, the required separation period is one year.  Virginia Code Ann. § 20-91(A)(9) allows parties to obtain a divorce after the parties have lived separate and apart without cohabitation and without interruption for more than one year.  This is the no fault grounds discussed above.  It is important to note that you cannot file for divorce on these grounds until the grounds exist.  That means that you cannot file for a divorce until AFTER you have already been separated for a year.  If your divorce is contentious you will likely not be able to actually obtain a divorce for at least a few months until after you file, and perhaps longer.  If your divorce is contentious, you...

Does My Spouse Have Any Rights To My Retirement Through Our Divorce?

Saving for retirement is a conversation many couples discuss during their marriage in preparing for their future together.  While the parties may have been on the same page when initially discussing how to save, their conversation may be different when going through any contentious divorce.  In short, the answer is yes, your spouse may be entitled to a portion of any retirement accounts, including pensions, that are solely titled in your name. The fact that any retirement asset is titled solely in one’s name does not prevent any marital funds from being divided. Nevertheless, only the “marital share” of any pension, profit-sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, may be divided.  Virginia Code  20-107.3(G)(1) defines “marital share” as “that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.” In short, only money that was contributed to the retirement plan starting on the date of marriage until the date of your separation may be divided. This is why is it important to keep copies of all retirement statements showing the values in the account on the date of your marriage and the date of your separation. How much is my spouse entitled to receive?  This question is more difficult.  Unlike many states, where property is considered communal and divided equally upon any divorce, Virginia exercises principles of equitable distribution in determining how to divide marital property.  The Court considers the following eleven (11) factors...

Co-Parenting Successfully through the Holiday Season: 4 Tips to Consider

Fall has arrived and so too has the holiday season.  This is generally a time for families to come together; to be joyful and thankful and to celebrate with kindness and love.  But for many divorced families, the holidays can be a stressful and challenging time.  “I love Halloween, but I can’t stand sharing it with my ex-husband” and “I don’t like that my kids hate going to their father’s for Thanksgiving, but what can I do, this is his year” and “Great, so now I am supposed to put a smile on my face for the kids with my ex-wife’s new boyfriend at Christmas” are just a few of the comments stated by some my divorced patients already this year. And while I fully appreciate the difficult struggles many divorced couples deal with, I encourage my divorced patients who remain in high conflict co-parenting relationships to remember that their children’s adjustment and emotional wellbeing should be what is most important – and not just during holidays, but across the entire year. I offer the following tips for co-parenting successfully to divorced couples this holiday season: Know your bandwidth:  If you are currently in a high conflict relationship with your ex-husband or ex-wife, your capacity to get along over the holidays will be more limited than if you are in a respectful and loving relationship with your ex.  While some divorced couples are able to trick-or-treat together with their children or trade off mid night on Halloween, other divorced couples do not have enough respect and agreement to do so.  Holidays for this latter group are typically best managed separately...

Can I go to Jail for Not Paying Alimony / Spousal Support?

Spousal support, also called alimony or support and maintenance, is court ordered payment to a spouse or ex-spouse. You may get spousal support if you are still married and separated.  Since spousal support is court ordered, the question is, “Can I go to jail for not paying spousal support?”  The simple answer to that question is: “Yes.” If a court orders you to pay spousal support, then failure to pay is disobeying a court order, and the court can find you in “contempt of court” for disobeying its order.  Remedies for failure to pay support include wage liens, levies upon personal property, garnishment of property, garnishment of wages, and even incarceration.  See Va. Code Ann. § 20-115.  Pursuant to Va. Code Ann. § 20-115, if the court finds you in contempt, it can order you incarcerated for up to one year and order that you perform work during the year you are incarcerated. In Virginia, the Court can order one spouse to pay support to the other in a lump sum, in periodic installments for a fix period of time, or in periodic installments for an indefinite period of time, also called “permanent support.”  See Va. Code Ann. § 20-107.1(C).  When the Court orders support without agreement of the parties, evidence of certain events can terminate the support obligation.  One such event is when the spouse receiving support lives with another person in a marriage-like relationship for one year or more according.  See Va. Code Ann. § 20-109. Once spousal support has been set by decision of the court, it cannot be changed unless there has been a material...

Virginia Updates Child Support Guidelines

Virginia updates child support guidelines effective today, Tuesday, July 1, 2014.  The new guidelines will general result in an increase in the amount of the child support obligation that a noncustodial parent owes.  In some cases, the change in the required support will be minimal.  For example, under the old guidelines, a person who was unemployed and obligated to support for one child would have an obligation of $65 per month.  Under the new guidelines, a person who is unemployed and obligated to support one child will have an obligation of $68 per month.  For other people, the change is more significant.  For example, under the old guidelines, a couple with combined monthly income of $20,000 and one child would have a joint, monthly child support obligation of $1,324.  The support one parent would pay would then be determined in proportion to the respective incomes of the two parents.  Under the new guidelines, a couple with combined monthly income of $20,000 and one child will have a joint, monthly child support obligation of $1,591.  The difference in support between the two guidelines is $167 per month. The change begs the question:  can I get a modification based on the new guidelines?  The answer is yes, if the new guidelines would result in a significant change to your monthly child support, it may be worth it for you to pursue an increase or decrease in child support.  Deciding whether to pursue a change, however, is one that you should consider carefully.  Other factors that have changed may offset the net change to your support.  These factors include the comparative salary of you...

Can I go to Jail for not Paying Child Support?

Can I go to Jail for not Paying Child Support?        In short, yes you can to jail for failure to pay child support in Virginia.  There are many remedies in Virginia, as well as other states, that a person receiving child support has when a parent fails to pay child support.  These remedies include loss of business license, loss of driver’s license, garnishment of wages, garnishing of income tax returns, and incarceration. This blog post covers some of the relevant information and authority related to child support enforcement in Virginia.  This blog entry is not intended to be an exhaustive discussion on the topic, not even close.  Furthermore, this blog entry is intended for informational purposed only.  A person with matters relevant to those discussed below should use this blog during the information gathering process and perhaps as research to help them interact with and select an attorney.  A person with any of the issues described below should NOT use this blog entry as a substitute for obtaining legal advice. Child Support Orders Every Virginia child support order is required by law to have certain notices.  The required notices are stated in full detail in Va. Code Ann. § 20-60.3.  There are 17 different paragraphs that cover the required notices and what content must be included in child support orders, and I am not going to restate each of them here.  A few examples, however, are (1) that support will continue for children over the age of 18 under certain circumstances, (2) that a petition can be filed to suspend a license to engage in professions,...

Hearsay Exceptions in Sexual Abuse Cases

Introduction                Hearsay is one of the most often misunderstood and mistakenly cited rules of evidence and legal concepts generally.  Hearsay confuses judges and practicing lawyers, let alone non-lawyers who choose to represent themselves.  I cannot tell you how many times I have heard a client, friend, or other non-lawyer in conversation mutters words like, “well that is just hearsay” or “he can’t testify to that because it is hearsay” without any clear understanding of what hearsay actually is. Hearsay exceptions in sexual abuse cases exist for a number of policy reasons.  One of the most important reasons for having exceptions in this case is to protect a child that has already been subjected to sexual abuse from further trauma.  These policies cannot override rights secured by the United States Constitution, such as the right to face your accuser.  Policy considerations certainly come into play in the two exceptions to the hearsay covered in this blog post. The purpose of this blog entry is not to discuss at length what hearsay is and what hearsay is not.  That topic could take volumes and will likely be covered, not exhaustively, in a series of other blog entries.  Nor is the purpose of this article to list every hearsay exception available in a child sexual abuse case, let alone every hearsay exception generally.  The purpose of this blog entry is to discuss two of the hearsay exceptions permitted in Virginia by statute and how these statutes apply to cases involving the sexual abuse of children.  These exceptions apply only in civil cases and not in...