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In what used to be called a traditional marriage, the husband earning the money and the wife took care of the household and the primary duties of raising children. Since the 1970’s this type of marriage has become less common, but it still exists. Even in households where both spouses work, often the wife has the primary child raising duties. When couples divorce, the father often loses frequent contact with the children. Instead of having daily contact, the father may be relegated to alternate weekends with perhaps an evening visitation during the week, plus holidays and summer vacation. This lose of contact may harm the father child relationship. It is important for fathers to assess their needs as a father, once a decision to divorce has been made. Many fathers that are more involved with raising of the children, than “traditional” fathers can seek extended time with the children, and in some cases, alternating weeks. The 50-50 sharing of time does not occur frequently, but it does exist. An article in Yahoo.com addresses some of the possible issues related to less-frequent contact.
Clients often ask whether a property settlement agreement can include a guaranteed, fixed minimum child support amount. The short answer is no. So long as one of the children included in a child support order qualifies for child support according to Virginia law, child support can be changed by the court. A 2015 Virginia Court of Appeals case, Everett v. Everett, addressed this issue.
In Everett, the ex-husband (“Father”) and ex-wife (“Mother”) had agreed, in a property settlement agreement, that Father would pay $5,000 in combined child support until “each child graduates from college.” Another provision in the agreement stated that the parties would share equally the costs of the children’s undergraduate expenses. Two additional provisions stated that if Father sought a reduction in his child support, “he shall be responsible for all of Wife’s attorney’s fees and costs,” and that if Father sought a reduction in his child support, Wife could seek spousal support and seek an interest in his business, which Mother had otherwise waived. In Everett, Father did seek a reduction in the $5,000 of child support, arguing that one child was in college, thus, reducing the cost of his care. Continue reading →
On October 6, 2015, the Court of Appeals issued a surprising decision, which appears to contradict established case law in Virginia regarding when spousal support stops, Weidlein v. Weidlein. Fortunately, it is clear how to avoid the result in Weidlein.
In Virginia, spousal support is either paid pursuant to a property settlement agreement, which is incorporated into a court order, or paid pursuant to a decision by the court. If a party remarries, spousal support stops. The recipient must notify the payor, and if he or she does not, any overpayment can be recovered. The Code of Virginia also has a provision terminating spousal support, “upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more.” Many property settlement agreements include this language. However, sometimes by accident, and sometimes by design, different language is used. The Weidlein case illustrates just how important it is to use precise wording. Continue reading →
In order to file for divorce, one of the parties must be both a “resident” of, and “domiciliary” of Virginia for six months just before the divorce is filed. Code of Virginia, Section 20-97(1). The term “resident” is where a person lives. It does not include a traveller passing through Virginia. The permanent place to which a person intends to return is referred to as a “domicile.”
There are special provisions for military members. These provisions are necessary because most military members declare their domicile to be their home state, or a low-tax state, not Virginia, even though their base is in Virginia or their ship’s home port is in Virginia. Continue reading →
In divorces cases in Virginia, a court can make equitable distribution of marital property. What this means is that the court determines what is marital property and then decides how to divide the property fairly based upon the Virginia Equitable Distribution statute. Code of Virginia, Section 20-107.3.
In a 2014 Court of Appeals Case, Linton v. Linton, 63 Va. App. 495 (2014), the court’s opinion addressed the difference between individually title marital property and jointly titled marital property. In the case, the wife chose to satisfy a monetary award with separately titled property. The husband didn’t want that property and he cited a rule that prohibits judges from requiring the division or transfer of individually owned property (excluding retirement accounts). In order to understand the decision, a brief discussion about marital property and how property is titled is necessary. Continue reading →
A recent case in Brooklyn New York confirms that spying between spouses is a real and growing problem. In the case, the husband put spyware on his wife’s cell phone. It was believed that among the emails spyed upon, there were many between the attorney and his client. In the Brooklyn case, the judge ordered that the husband turn over his computers. The “spying spouse” was fairly sophisticated, and installed both the spyware as well as encrypting his internet identity with an IP spoofer, software that generates false IP addresses. IP addresses are the “street addresses” on the internet. Each computer or phone attached to the interest has such an address. Fortunately, if the spyware is discovered, as in the Brooklyn case, there are usually trails back to the perpetrator. Installing such software is usually illegal under both federal and state law, with a few exceptions, primarily dealing with monitoring children.
Here is what such spyware can do. For cell phones, it can allow a person to listen to every phone calls. Each cell phone is a radio transmitter. With the identifying information for the transmitting phone and the software, it can intercept every email and send it directly to the spouse. It can send photos to the spouse. For computers, the software can take “screen shots” at chosen periods, and send those to the spouse. It can log every keystroke, capturing every password, document and email. The ease by which this can be obtained is scary. The judge in the Brooklyn case noted that it may be the end of privacy.
In my opinion, Virginia’s laws cannot be considered fully no fault.
A client often comes in for the first appointment, and he or she states that the parties just don’t get along anymore. Whatever love that they had is gone, a phrase that often appears in popular music. Even though this may be the most common reason to get a divorce, Virginia Law doesn’t recognize it. Instead, Virginia requires that the parties live “separate and apart” for a period of six months or for a period of one year. The six-month period only applies if there aren’t any children under eighteen born to the marriage and the parties also have a property settlement agreement. Those without agreements must be separated for a year, whether or not there are any minor children. In other words, you cannot file in Virginia because you intend to separate and divorce, you must first separate for a period of time. During the separation period, there isn’t any divorce proceeding to file, unless one of the parties can allege, in good faith, a fault-based ground of divorce. What do you do if the parties cannot agree who should leave? The short answer is that it is a messy situation. Continue reading →
When parties separate, and then divorce, typically, little thought is given to proving that the parties were married. All attorneys ask a client for the date of marriage, as well as the place of marriage. Such information is always set forth in a complaint for divorce. However, it is not customary to seek the original marriage license, or to introduce it as evidence in the divorce case. On September 15, 2015, the Virginia Court of Appeals held in the case, MacDougall v. Levick, the pitfalls of not focusing on the creation of the marriage. In MacDougall, the Court of Appeals held that parties who thought that they had been married for over eight years when a divorce was filed by the wife, had entered into a voidable marriage, because they had been married prior a certificate of marriage being issued, as required by the Code of Virginia, Section 20-13. According to the Court of Appeals, as soon as it is shown that a wedding occurred prior to the issuance of a marriage license, and a party asks the Court to void the marriage, it will be voided.
The MacDougal case was somewhat surprising, considering that divorce courts don’t require a certificate of marriage to be introduced as evidence. Also, there are a variety of legal principals and doctrines that support upholding the finality of a marriage even if there are certain defects in the creation of the marriage. Public policy in Virginia is to “uphold the validity of marriage.” However, the Court of Appeals held that none of the legal principals or doctrines saves a marriage, if it occurs prior to the issuance of a marriage license. Continue reading →
If a spouse commits adultery, it may bar them from receiving spousal support.
The Virginia Code, Section 20-107.1(B) provides in part: “no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse’s favor a ground of divorce under the provisions of subdivision (1) of § 20-91.” This section applies at a final divorce hearing. It does not apply at a pendente lite (temporary) hearing. This statutory provision means that if the spouse that wants to receive spousal support has committed adultery, and it is proven in court, then such spouse cannot be awarded spousal support by the court.
Many people believe that adultery that occurs after separation does not count against them in the divorce case. This belief is wrong. Adultery is adultery until a decree of divorce is entered. A decision by the Virginia Supreme Court held that a husband who found out about his wife’s post separation adultery, could seek to have the court pleadings amended to add a complaint of adultery, and that such adultery, if proven, barred spousal support. The Court of Appeals, which is one level down from the Virginia Supreme Court, has been critical of the holding, while acknowledging the higher court’s decision. This rule conflicts with the personal beliefs of many people, who believe that they should be able to date after separation. Nevertheless, the case law in Virginia, not the personal beliefs of the parties controls the decisions of the the court. Continue reading →