Domestic Relations Archives - Page 2 of 2

Difficulties in Divorce: What is a Pendente Lite Hearing?

July 11, 2013 By Marc Leave a Comment

Country Home — Courtesy of pvdEric via flickr.com

Individuals going through divorce in Virginia will often ask themselves thousands of questions as they tread down the path of separation. One common concern that arises is, broadly speaking, TIME. Most people tense up when they hear how long it can take for a divorce to be finalized—once separation begins, a year or more is the norm.

“What do I do until then?” is an incredibly daunting thought. The “what-ifs” are bound to circle around in your head: what if my husband doesn’t provide any support; what if my wife keeps coming around my residence, or removes me from the health insurance policy . . . and so on.

Temporary Orders in Virginia Divorce Cases

While your circumstances will dictate what your best options are during a separation period (and because of that, it is important to speak with an attorney directly to determine your best course of action), it is helpful to know that you might be entitled to receive temporary relief from the Court.

Once a Divorce has been filed, you may ask for a hearing with the Court to enter a temporary order. This hearing is called a Pendente Lite hearing. This latin phrase means “pending the litigation” (per legaldictionary.com).

Thankfully, our Virginia legislature has kindly recognized that temporary relief is important. In Virginia Code Section 20-103, the legislature has given Judges the authority to make various rulings while the case is pending.

Common Pendente Lite Requests:

Temporary child and spousal support
Temporary custody of your minor children
Temporary use and possession of the marital residence
Order prohibiting the dissipation of marital assets
Order requiring a spouse to pay joint debts
Order requiring a spouse to provide health insurance coverage
Temporary award of attorney’s fees

The Court may also punish a party for contempt if they choose to disobey a Court Order while the case is pending. The purpose of this code section, and of the Pendente Lite hearing, is to provide a party with protection during what can often be a very lengthy divorce process.

If you have additional questions about Divorce, or Pendente Lite hearings, call BoykoNapier at (804) 658-3418, or contact us via email, and speak with an experienced Virginia Family Law Attorney today.

Discovery in Divorce: What Documents Do I Need?

June 6, 2013 By Marc Leave a Comment

Stack of Paper — Courtesy of jenni from the block via flickr.com

As you can imagine, one of the primary issues in a divorce is determining how to split up the assets and debts of the spouses. Given this fact, we are frequently asked by folks what sort of documentation they should gather before their consultation. While it usually is not necessary to have everything prepared before an initial consultation, we decided to create this post to give you a heads-up as to what documentation you are likely to need as the process unfolds.

Documentation Regarding Income:

Employment Income – usually your pay stubs will suffice,
Other Income Sources – recent statements or deposit documentation for other income sources such as trust/investment accounts, rental properties, retirement, disability, etc., is usually appropriate.
Most Recent Tax Return – sometimes earlier returns will become necessary as well.

Documentation Regarding Assets:

For these documents, it would be appropriate to gather recent statements, as well as the statement at the time you and your spouse separated (if applicable). Often times in divorce, the value of assets/debts at the time of separation is very important.

Bank Account Statements – for all joint accounts and any other accounts in your sole name.
Retirement Account Statements – for all joint and sole accounts, including IRA’s, 401(k)s, pensions, etc.
Tax Assessments – for any real estate or relevant personal property.
Mortgage Balance Statements – for all real estate in which h you have an interest
Automobile Lien Balance Statements – for all vehicles which you and/or your spouse own that is not paid off.
Investment Account Statements – i.e. stock accounts, trust accounts
Life Insurance – Policy statements, including any documentation regarding cash-out values (if applicable).
Business Tax Return – if you have any ownership interest in a business
Personal Property List – it is usually appropriate to compile a list of most of your valuables (usually found in the home) that are work $250.00 or more (i.e. television, leather couch, computer).

Documentation Regarding Debts:

For these documents, just as with assets, it would be appropriate to have recent statements as well as statements from the date of separation. In addition to your mortgage and vehicle lien balance statements mentioned above, it would be wise to gather:

Credit Card Statements – for all joint and individual accounts
Loan Statements – for any personal loans you may have (i.e. student loan) or loans secured against assets (i.e. loan against a 401(k)).
Documentation regarding monthly/common expenses – i.e. utilities, phone/internet, other recurring expenses.

Although there are a wide variety of additional documents that may be relevant depending on your unique circumstances, this should give you a basic understanding of what to expect. It would be wise, before you go and spend hours getting everything together, to speak with your lawyer about what documents are pertinent to your particular case.

If you have any additional questions, our attorneys would be more than happy to help. At BoykoNapier, our attorneys are experienced in all matters of family law. You can reach us via phone at (804) 658-3418, or you may contact us via email.

Deciding to Divorce in Virginia? Frequently Asked Questions!

May 22, 2013 By Marc Leave a Comment

back to back — Courtesy of exbinito via flickr.com

Choosing the path of divorce can be a very emotional one. In this post we will provide a brief overview of some common questions and concerns.

Is there such thing as a “legal separation”?

Unlike some other states, in Virginia there is nothing that can be filed with the court to certify that you and your spouse are “legally” separated. However, if you are separating, an attorney can advise you regarding what will constitute the “date of separation” and also what steps you can use to protect yourself during separation.
Usually, when you ultimately file for divorce, the date that you began living in separate households is considered the date of separation. There are many exceptions to this; it is possible to be separate in the same household. You should speak with an attorney if you have additional questions regarding legal separation.

How long do I have to be separated in Virginia before I can get Divorced?

It depends! Under certain fault-based grounds for divorce, you may be entitled to a divorce regardless of how long you and your spouse have been separated . . . however, most divorces are finalized based upon a statutory separation period. The general rule is that you and your spouse need to be living separate and apart, continuously, for one year.
Note, there is an exception to this: if you do NOT have minor children in common with your spouse AND you have a Property Settlement Agreement that has been signed by both parties, you can file for divorce after being separated for only six months.

What is a Property Settlement Agreement?

A property settlement agreement (a.k.a. “PSA”) is a document entered into between both spouses that explains how the parties are dividing assets, debts, spousal support, custody, visitation, and child support. It is, essentially, a divorce contract that spells out all the terms of the parties’ separation. The kicker is it has to be agreed upon by both spouses for it to have any legal effect.
Note: if a Juvenile and Domestic Relations Court is already handling the custody, visitation, and/or child support matter, those do not necessarily need to be included in the Property Settlement Agreement.
A property settlement agreement is a very valuable option for most spouses because it usually makes the divorce process easier—it is also cost-effective and a much less emotional process than going through a full, contested divorce hearing.

Are there different kinds of divorces in Virginia?

Yes! Although divorces are almost always unique, the method of filing and also of finalization is often the same. Generally speaking, there are two types of divorce.
- Uncontested (“No Fault”) Divorce: This is normally considered the easiest, fastest, and least-expensive divorce. There are no issues in dispute–both parties have agreed on the division of debts, assets, and liabilities and the parties are filing based upon a separation period. There are normally no court appearances required by the parties or their attorneys.
- Contested Divorce: In Virginia, most people consider a divorce to be “contested” if there are any issues in dispute (i.e. division of assets/debts, custody, visitation, support) or if a fault ground for divorce is being alleged (i.e. adultery, cruelty, desertion). Unless an agreement is reached between the parties, the divorce will be litigated in Court by presenting evidence to the Judge who will make a ruling on the disputed issues.
- Note, this certain jurisdictions have different procedures which an attorney can explain to you.

How Do I File for Divorce?

Divorces are filed in Circuit Court and are usually filed in the jurisdiction where the parties last resided. Although you are not required to have an attorney to file for divorce in Virginia, it is very wise to obtain one if you wish to file for divorce. There are many legal requirements that can make it extremely difficult and time-consuming if you elect to file on your own.

Additional Questions? Visit our website at boykonapier.com for additional information regarding family law and divorce and call today to schedule a consultation at (804) 658-3418, or contact us via email.

Adoptions: A Glance at the Different Types and Some Common Concerns

May 9, 2013 By Marc Leave a Comment

Parents holding newborn — Courtesy of VaMedia via flickr.com

Choosing the route of adoption can be a very exciting, yet scary time for new parents. While there are many important details that you should familiarize yourself with if you are considering adoption, this post provides a quick overview—to make you aware of the types of adoptions and to address a few common concerns.

The First Step: Choosing the type of adoption that is applicable to you.

Step-Parent Adoption: A step-parent adoption occurs when the adoptive parent is the spouse of the child’s biological mother or father. This adoption normally does not require a home study.
Parental Placement Adoption: This type of adoption occurs when a birth parent directly places their child with you. There is no agency involved.
Agency Adoption: This type of adoption occurs when a family chooses to use an agency to find a child. The agency helps the family with the adoption process and handles a lot of the common hurdles that adoptive families face.
Close Relative Adoption: This type of adoption occurs when the child’s grandparent, great-grandparent, adult nephew or niece, adult brother or sister, adult uncle or aunt, or adult great uncle or great aunt decide to adopt a child.
International Adoption: This occurs when a family decides to adopt a child from outside the United States of America. This is usually done through an agency.
Adult Adoption: This occurs when there is an adoption of someone over the age of 18.
Special Needs Adoption: This adoption occurs when a family decides to adopt a child with special needs. There are assistance programs in place from the government to assist families who otherwise may be unable to adopt a child due to the expense involved.

How Long Will My Adoption Take?

Again, it depends on the type of adoption and the cooperation of the birth parent(s) (if applicable). While the biggest factor is the type of adoption, some additional variables include:

Whether or not a home study is required
The locality where your adoption case is filed—certain courts are more expeditious than others
Any difficulty in locating and/or obtaining consent from birth parents

Understand the Expenses Involved in an Adoption.

In addition to the cost of being a parent and raising a child, the process of adopting also has its expense. The expenses involved in an adoption vary dramatically, depending on the type of adoption you are pursuing, the cooperation of the birth parent(s) (if applicable), but usually include agency fees, legal fees and court fees.

What if I Cannot Find the Birth Father?

There are many avenues to finding the birth father. Virginia has a Putative Father Registry. You can also have a potential birth father served at his last known address. You can also have a birth father served by publication. Contact your adoption attorney to help you with your search.

Do I need an Attorney?

Good question! You don’t necessarily need an attorney. However, it is highly recommended.
An attorney can help you in many ways. They will file the correct paperwork with the court to prevent unnecessary delays, and will make sure you have followed all steps and procedures required as adoptive parents. Attorneys will draft all paperwork necessary for the adoption—as new parents, your focus should be on your child, not on the paperwork involved in adopting your child.

About us:

At BoykoNapier, our attorneys are experienced in handling simple and complex adoptions. We represent clients throughout Central Virginia, including Richmond, Henrico, Chesterfield and Hanover. If you are in the process of adopting, or are simply contemplating the possibility, call us at (804) 658-3418 or contact us via email.

The Virginia Code – Find What You Need Online

April 30, 2013 By Marc Leave a Comment

In today’s technological world, it comes as no surprise that almost everything is online. So, it should not surprise you to learn that the entire Virginia Code, in all its glory, is online with a user-friendly, searchable database.

What is the Virginia Code?

The Virginia Code is, simply put, the laws in Virginia. The Code is the collection of statutes that the legislature has created and amended over time. These written statutes (a.k.a. “code sections”) are laws that govern our society.

If you have ever been in criminal or traffic court, you have probably heard the Judge or the clerk announce to a defendant, “You have been charged with violating Section 18.2-xxxx of the Code”. That is a reference to one statute. But there are thousands, governing everything including crime, contract, divorce, custody, probate, licensing, insurance, adoption, etc.

Why You Might Want to Look at the Virginia Code?

If you are involved in a Legal Action

Criminal or Traffic Charge – if you have been charged with a criminal or traffic offense in Virginia, you should receive a summons, warrant or indictment. On any of these documents is a code section (sometimes more than one). For example, if you have been charged with assault and battery, you should see Virginia Code Section 18.2-57. The section will describe the behavior that is prohibited and will usually specify the degree of the charge and, in some cases, the punishment range.
Civil Case – if you are involved in a civil action, the Judge may turn to the Code to find the legal standard that applies to your case. For example, in a child custody case the Court is obligated to consider certain “statutory factors” set forth in Virginia Code Section 20-124.3. The same is true for certain civil contract suits, among many other types of civil litigation.

If you are wondering whether you can bring a Legal Action

If you think you have a legal action against another, the Code may be of some assistance. Search for the issue you are having and you may find the answers you were looking for.
If you are wondering whether you should do something or not–I.E. whether a particular activity is prohibited. Reading the Virginia Code can often be any eye opening experience. There are so many things that you probably are not aware of—some of them are even criminal laws that you would not have thought existed.

How To Access the Virginia Code Online?

Visit the searchable database: Code of Virginia (http://leg1.state.va.us/000/src.htm).
Search via words and phrases (in the search term box)
- Just like you would in google (sort of). If you want to search for a couple of words/phrases, insert the word “and” inside.
- Be careful to use the exact word you want. If you want word variations, insert a “*” (i.e. “Custod*” for custodian or custody).
Search via Table of Contents
- This takes you to a list of the Titles. In this way, the statutes are nicely organized by topic. If you want Family Law, for example, it is listed next to its Title (Title 20: Domestic Relations).
- Once you are inside a particular title, you should see a list of Chapters. These are basically subtopics.
- Once you are inside a particular Chapter, you should see a list of every statute within the chapter.
Search via Popular Names
- A click on this will bring you to a list of popular legislative acts, including Uniform statutes (i.e. “Uniform Child Custody Jurisdiction and Enforcement Act”).
NOTES:
- If you are having trouble, use the search examples provided to help you reformat your search.
- READ THE ENTIRE SECTION. Don’t stop after the first paragraph. Sometimes, within a particular section, there are exceptions or additional rules that might impact your situation. So be sure to review everything–after all, if you’re spending time to look up a statute, odds are it is probably important!
- The online database will also let you review a portion of the statutes history, including amendments (click on the hyper-linked numbers at the bottom of the statute).

If you have questions about the Virginia Code, or about any legal issue you may be facing, call an experienced Virginia Trial Lawyer at BoykoNapier today at (804) 658-3418 or contact us via email. We represent clients throughout Central Virginia, including Richmond, Chesterfield, Henrico, Hanover and the surrounding localities.

Virginia Child Support Guidelines: a Closer Look at the Ingredients

April 9, 2013 By Marc Leave a Comment

Chalkboard Calculation Math — Courtesy of Evelyn Saenz via flickr.com

In Virginia, Court-ordered Child Support amounts are typically determined through the use of Virginia’s Child Support Guidelines.

The support guidelines are a creature of statute (Va. Code Section 20-108.2) and the Court is required to presume that the guideline amount is appropriate (Va. Code Section 20-108.1).

Because the child support guidelines are so important, it is a good idea to familiarize yourself with the building blocks—the ingredients that usually provide the foundation for calculating the child support amount:

Gross Income of the Parties
- The Gross income of both parents perhaps the primary factor in determining the percentage obligation of the parties (i.e. if Dad makes 30% more than Mom, he will need to pay a higher percentage of the child support need)
- Gross income is generally considered to be all income from any source. For most people, this could mean:
  - Wages from Employment
  - Interest income
  - Unemployment income
  - Disability income (note: if a parent receives disability benefits, any sums received for a child who is the subject of child support shall be includable as well)
  - Spousal Support
  - Pension and Retirement Account distributions
  - Gifts
Number of Children in Common
- The number of minor children of the parties will obviously impact the amount of the child support obligation
Number of Children Not in Common
- If either parent has children from another relationship than they will typically be awarded a credit that offsets a portion of their gross income—the credit will depend on the number of other children or on the amount of child support they pay for the other children
Medical Insurance
- The premium expense for the minor children’s medical and dental coverage, if applicable, is considered.
- The parent who pays the expense should get a credit for the payment.
Daycare Expenses
- The daycare expense for the minor children, if applicable, is considered.
- The parent who pays the expense should get a credit for the payment.
Custodial Time
- If the non-custodial parent has at least 90 visitation days each calendar year, or if the parties have joint physical custody, the Court may use “shared support guidelines”, which calculates the child support need based on the amount of time the child is with each parent.
- If the parties have split custody (i.e. both parties each have primary custody of at least one minor child in common) the Court may use “split custody guidelines” to account for the different custodial arrangement

Take a look at a Child Support Guideline Worksheet to see how this all fits together.

If you have questions about child support, contact an experienced family law attorney at BoykoNapier today. Our attorneys represent clients throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. You may reach us via phone at (804) 658-3418 or via email.

Domestic Protective Orders in Virginia: Powerful and Prevalent

March 27, 2013 By Marc Leave a Comment

Scales of Justice — Courtesy of Citizensheep via flickr.com

In Virginia, you may be entitled to a domestic protective order if:

You have been subject to “family abuse” committed by another,
You continue to be in fear, and
A protective order is necessary to prevent further abuse.

A Juvenile Court Judge, in granting a protective order, is authorized to use various remedies in favor of the person requesting the protective order. These include prohibiting contact between the parties (and the children, in some instances), granting the requesting party possession of a residence commonly occupied by both parties, and granting an order of temporary child support (read the rest of the remedies at Va. Code 16.1-279.1). Further, some of the remedies can be implemented immediately upon the approved application for an emergency protective order.

I have strong views on the domestic protective order laws in Virginia. I cannot argue against the necessity of these orders—violence in the household must not be tolerated and protection must be afforded to those in need–and I have represented many individuals who were properly in need of a protective order. However, I can say that I believe too many people get away with using the protective order as a legal tool–often, as an advantage against an opposing party in a custody or divorce battle. And it’s easy to see the benefit of obtaining a protective order: if you are seeking a divorce, a protective order could force a separation by ordering that your spouse give you temporary possession of the marital residence (not to mention de facto temporary custody of your children, among other things).

How do I know people abuse the system? I don’t. I can’t imagine people would ever willfully admit to using it as a tool–in many cases that would be considered perjury. What I can say is that I have seen many protective order affidavits that, on their face, should not even warrant a hearing. I’ve had numerous people in my office about custody issues ask me: “What if I go get a protective order?” when they are certainly not in fear of their significant other. Perhaps even worse, I have been involved in dozens (and heard about dozens more) of negotiations at protective order hearings and far too often the result is: the protective order is voluntarily dropped by the requesting party, and a temporary order of some kind is agreed upon, usually involving custody, visitation, or support. I believe that if the applicant was truly in fear for their safety at the time they filed for a protective order, they would not be so willing to let it go.

How can the Court system protect against this potential for abuse of protective order?

The legislature should step in and require:

More Information on Affidavits
More restrictive burdens of proof
Limit the definition of family abuse
Allow respondents (i.e. defending parties) to appear at preliminary protective order hearings

After all, we should be more hesitant, as a society, before we authorize a Court to strip a person of two essential freedoms—family and property.

Difficulties in Divorce: The Tale of Two Households

March 3, 2013 By Marc Leave a Comment

Virginia Capital Building — Courtesy of JoeDuck via flickr.com

The price of separation can be one of the largest hurdles couples face during a divorce. Figuring out how to afford the operation costs of two different households is no easy task. Once the “marital residence” becomes a misnomer, husbands and wives are staring at the same income levels, but twice the bills. Two electric bills, two mortgages or rents, two homes to furnish, clean and repair, and sometimes, two daycare providers.

This is particularly difficult in a lot of situations because the spouses did not consider the cost of running two households. Given that most are overcome with emotion and anxiety during separation, it comes as no surprise that they haven’t first poured over their bank accounts to create a feasible budget for their “new” life. This financial neglect is common even in cases where the almighty dollar was in fact the root cause of marital discord.

So, in case you happen to be reading this and you are thinking about separation (i.e. leaving the marital residence), and your departure is not emergent (i.e. you are not subject to imminent harm), here are a few tips to consider before you decide to go:

Have a plan. Figure out where you are going. Perhaps the plan is renting an apartment in Richmond or Henrico. Fine. Or even retreating to your parents’ place, or a friend’s house in Chesterfield. Fine. Just have a plan. (Note: it would be advisable to ensure that your plan is not “temporary”, try not to find yourself in a position where you are saying something like this: “I’m going to Nancy’s and I’ll figure it out from there”).
Review your assets. Look primarily at “cash-on-hand” (how much money you have immediate access to) and your net monthly income.
Tally your expenses. What new expenses will you have (furniture, rent/mortgage, utilities)? What current expenses will you continue to incur (phone, insurance, car payment, mortgage)?
Compare your cash and net income to your expenses. How long will your finances last? If the numbers aren’t comforting, consider modifying your plan.
Talk to a family law attorney about your rights incident to separation. You may be entitled to request support from your spouse, among other things. They will also be able to advise you regarding the manner/method of your separation to help you protect your rights. Because separation is often hardest on children, discussing the situation with a family law attorney is particularly important if you have kids.

Call: 804-658-3418