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,...

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...

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,...