Virginia Family Law Resource

Virginia Family Law Resource

How to Change a Custody and Visitation Schedule Agreed to During Mediation

Posted in Custody, Divorce Procedure
Change to Custody and Visitation Order

Most cases settle.  That holds true even in divorce cases.  In divorce cases, with the increased use of mediation and other forms of alternative dispute resolution, settlement is even more likely.

A Change to a Court Determined Custody and Visitation Schedule Requires a Material Change in Circumstances

For custody and visitation cases that do not settle and end up going to trial, the court will decide the custody and visitation schedule.  Parties who are unhappy with the schedule provided by the court can request a change.  However, for the change request to be granted, that party must show two things:

  • That there has been a material change in circumstances since the most recent award

AND

  • That the proposed change would be in the best interests of the child.

The requirement that one party show a material change has occurred in order to change the custody and visitation order makes sense for cases that have been resolved with a final order in place.  In those cases, the parties have presented their positions at trial and the court has made a decision.  It would be unfair to allow a party to seek change simply because they are unhappy.  To allow such a change would create a cycle of never ending litigation, resulting in skyrocketing costs and stress on all parties involved.

A Change to a Mediated Custody and Visitation Agreement Also Requires a Material Change

But what about cases that have been resolved through agreement – where an order has yet to be entered?  For example, if the couple agrees to mediation and works out an acceptable custody and visitation schedule, if one party is later unhappy, does the material change in circumstance rule apply here as well?  Or can a parent simply seek change because they are unhappy or simply because that party changes his or her mind – after all no court order has been entered.

The 2009 Virginia Court of Appeals Case, Duva v. Duva dealt with this very issue.  The Court found that even in a case where custody and visitation arrangements have been resolved by agreement, before such an agreement can be modified it is necessary to satisfy the material change test – i.e. to show (1) a material change in circumstance has occurred since the date of the most recent award and (2) that the change would be in the best interests of the child.

The Duva case is significant because under Duva, even if a court order memorializing the terms of an agreement has not been presented or entered, the higher material change requirement still applies.  As a result, for those people going through mediation or other alternative dispute resolution form, you do not have to worry, the agreement will not be disregarded just because the other party changes his or her mind.

Do Virginia Custody and Visitation Cases Favor the Mother?

Posted in Custody
Child Custody

In custody and visitation cases, one concern often expressed by clients is the worry that courts have a belief that children are best cared for by one parent over the other – most often the mother.  Fathers especially have a fear that when pursuing custody/visitation they are already a step behind simply because they are the father.

Recently, I came across an article by Leslie Spoltore of Fox Rothchild, LLP which talked about the same concern of gender bias in custody cases that take place in Delaware.  Referring to Delaware law, she identified the prohibition against gender based presumptions in Delaware custody cases.

Virginia Law:  No Presumption or Inference in Favor of Mother or Father in Custody Cases

Just like Delaware law, Virginia law prohibits gender based presumptions in custody and visitation cases.  In other words, just because you are male or female does not mean that you are automatically at a disadvantage.  The prohibition appears in Virginia Code § 20-124.2(B) which states:

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A Bonus You Haven’t Received Could Be Considered Income

Posted in Child Support

Bonus not received could be incomeAs we begin to head into the last quarter of 2016, many people will be hoping and planning for an annual bonus.  While not yet received, that future bonus money may already be earmarked for various household expenses, vacations and even taxes.  If you are involved in a child support matter, don’t make plans for the entire amount, as that bonus may be counted as income even if not yet received.  Here’s why.

Bonus Received = Gross Income

When child support is calculated, the amount of support is based on the combined “gross income” of the father and mother.  Each individual’s share of support is based on their proportionate share of the total.

Bonuses are considered “gross income” under Virginia law.  (Virginia Code § 20-108.2(C)) Specifically, “gross income” is defined as:

Income from all sources, and shall include, but not be limited to, income from salaries wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits…, worker’s compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.

For bonuses that have been received, the answer is fairly straightforward – received bonuses are income and used in calculating child support.  But, what about bonuses you expect or hope to receive, but have not received?  Is that included in income as well?  Maybe….

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Unmarried and Living Together? Here are Some Ways to Protect Yourself

Posted in Unmarried

Co-habitation agreementSandra Block recently wrote an article in Kiplinger Personal Finance (April 2015) about the “Financial Pros and Cons of Getting Married Later in Life”. According to the article, the number of adults over 50 who were living together but not married has doubled between 2000 and 2010. According to financial planners, these individuals are concerned that marriage will “saddle them with higher health care costs, wipe out retirement benefits, raise their taxes and disrupt estate plans” and thus avoid marriage.

Cohabitation is a trend increasing in popularity and is not just limited to people over 50.  The marriage rate has decreased and adults are getting married at a much older age, if at all.  For those adults who choose to live together without getting married, there are several legal issues that should be addressed.

Unlike married couples, in Virginia there are not similar legal protections for individuals who live together but are not married. Because of this, it is important that the unmarried couple consider whether agreements should be drafted and signed to protect themselves within this arrangement.

As discussed in Ms. Block’s article and expanded upon below, documenting the arrangement, while not the most romantic, is the safest way to go. There are three types of agreement that should be considered:

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5 Separation and Divorce Tips from St. Vincent (the Movie)

Posted in Custody, Separation

St. Vincent, a 2014 movie give us some tips that can be used in a separation and divorce In the 2014 movie St. Vincent, Maggie and her son Oliver move in next door to Vincent, a grouchy elderly man who likes to spend time smoking, drinking and gambling. Maggie recently separated from her unfaithful husband and has trouble adapting to being a solo parent. Now required to support a family and maintain a job with unexpected hours, she reluctantly relies on Vincent to help watch Oliver when she is at work.

The movie focuses on the unlikely bond between Oliver and Vincent and the eventual acceptance by Maggie and her estranged husband. Also, while rough on the surface, Vincent really is a good person at heart. But, this being a family law blog, the movie is relevant because of the five tips that can be extrapolated from the film.

Here they are:

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Facebook Posts Can Damage Your Divorce Case

Posted in Social Media and Divorce

Facebook and Divorce

“The internet’s not written in pencil, Mark, it’s written in ink.”

The Social Network.  Dir. David Fincher, Columbia Pictures, 2011.

With all the cruddy weather we have been having lately, I have spent more time at home.  Spending time on the internet usually leads to Facebook of which I am not a huge fan.  I don’t post pictures, I don’t give opinions and I generally just observe.  I know people who post every aspect of their lives on that platform – from taking pictures of their food, to posting party invitations.

Facebook as a Factor in Divorce Proceedings

It is not shocking that some people share too much and what is shared is being used against the sharer.  According to a January article in the Washington Times by Cheryl K. Chumley, “Facebook is now cited in about a third of all divorce cases.”  The article cites a study reported in an article by the Daily Mirror.  Researchers surveyed various legal firms and found that the number of cases that use evidence gathered from Facebook is increasing.  According to the study, law firms are able to utilize Facebook to find evidence of infidelity, new relationships, where people are going and even how much they are spending.

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Denying Access to the Other Parent Could Result in Losing Custody

Posted in Custody

Denial of Access can Result in Change of CustodyIf you are separated and thinking about leaving the state with your child, think carefully before acting.  Leaving without the Court or other party’s permission could result in you losing custody.  I saw it happen this past Friday as I watched a pendente lite hearing for custody, visitation and support.  Here is what happened:

The Case

Mother and Father lived in California and had one Child.  A few years ago, Father was transferred to Virginia for work.  The family moved and Mother found a job at a day spa in Virginia earning minimum wage.  Eventually, Mother and Father separated.  Mother claimed that Father was abusive and after separation she didn’t want to stay in Virginia, so she took the Child back with her to California.  Mother did not work and had no job in California.  Father never agreed for the Child to go to California to live.  Father filed a motion seeking custody and child support on a pendente lite basis (pending the litigation).

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Can Domestic Violence Be a Bar to Receiving Spousal Support?

Posted in Spousal Support

Domestic Violence

A few days ago “RVA Magazine” wrote an article about the death of a domestic violence related bill – HB 2105 which will not become law in this most recent session of the Virginia General Assembly.  Had it been passed, the bill would have prevented spouses convicted of rape or felony assault of the other from receiving spousal support.

Husband Convicted of Assault Still Receives Spousal Support

According to the article, HB 2105 was inspired by the story of an unnamed Wife.  Wife was the primary breadwinner in the family.  On one horrifying evening in the late summer of 2011, Husband prevented Wife from communicating with anyone, threatened to shoot anyone who entered the house with a shotgun and later forced Wife to go on a terrifying car ride with him where he was driving dangerously.  Eventually, Husband stopped the car, got out, went to the Wife’s side of the car and swung a hammer at her head.  Fortunately, he missed, then proceeded to get back in the car and drive home.

Husband was charged with felony abduction and domestic assault and battery.  Wife obtained a protective order.   Husband pled guilty to the domestic assault and battery charge and later the felony assault charge.  He was subsequently incarcerated, in part because of numerous violations of the protective order.

While Husband was in jail, Wife filed for divorce.  Despite his conviction and incarceration, the court provided Husband with emergency spousal support and permanent spousal support, all at the expense of Wife.

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Monitoring Your Spouse’s Communications Could Get You in Trouble

Posted in Divorce Procedure

Monitoring your spouse's commuinicationsIn late January, the Federal District Court for the Eastern District of Virginia issued an order halting the advertising and sale of “StealthGenie”, a “spyware” application (“app”) that could be installed on mobile phones.

StealthGenie logged and recorded information such as incoming and outgoing calls, emails and text messages. The information could then be forwarded to an individual seeking to monitor the information. The software could be loaded on a phone without the user’s knowledge and even allowed the person attempting to monitor the ability to intercept calls in real time.

Apparently StealthGenie is not the only “spyware” app available on the market today. According to a recent article in Virginia Lawyer’s Weekly, “use of such products is growing, despite the StealthGenie prosecution.”

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Seeking a Divorce? Here is How Long You Have to Wait.

Posted in Divorce Procedure

 

When Can I Get a DivNo Fault Divorce or Fault Divorceorce?

I am often asked about the timing for a divorce. Specifically, when can a divorce take place? How long does one have to wait before filing? Below is the answer.

The General Rule: The Waiting Period for a Divorce

After you separate, there is a waiting period before you can file for divorce. As a general rule, the waiting period depends on whether you have minor children and is as follows:

If you have minor children, you have to wait 12 months before you can file for divorce.
If you do not have minor children, the waiting period is 6 months with an executed Property Settlement Agreement, 12 months without.

The general rule applies to “no fault” divorces, i.e. divorces that are based on not wanting to be married any longer. These are often referred to as a divorce based on “living separate and apart”. In the general case, husband and wife separate, and maintain the separation for the waiting period. During that time, they negotiate the terms of the divorce (who gets what) and often execute a property settlement agreement. After the waiting period elapses, one party will file and finalize the divorce.

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