Family Law Archives - Page 2 of 4

Virginia Divorce: Settlement vs. Litigation

April 16, 2015 By Marc Leave a Comment

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Ah, the ultimate question in your divorce case: Should I settle, or should I go to trial?

The answer to this question depends on the facts and circumstances. Every situation is unique and various issues need to be considered when deciding how you should handle your divorce. While you should speak with an experienced divorce and family law attorney for specific advice about your case, here are a few things that you should think about:

In Virginia, going to trial in a Divorce means that your fate will be in a Judge’s hands, not your own.

If you and your spouse do not reach an agreement in your divorce case, normally a Virginia Circuit Court Judge will be responsible for deciding how to divide up your marital assets and marital debts, as well as how to resolve child custody, visitation and child support/spousal support (if applicable).
Prior to making the final decision, most Judges will conduct an “equitable distribution” hearing, where they will hear testimony from both spouses and relevant witnesses, review evidence that is submitted, and hear arguments from the respective attorneys. The duration of this hearing will depend on the complexity of the issues involved. Normally, you and your attorney will have a limited amount of time to present and argue your case.
As you can imagine, it is incredibly difficult for a Virginia Circuit Court Judge to truly capture the essence of a marriage in such a short period of time. They don’t have an opprotunity to really get to know the parties; they have to make important decisions in a relatively short period of time. Most Judges (in our experience at least) would be quick to point out that they will never know the circumstances of your marriage as well as you do. Accordingly, one major benefit of settlement in a divorce case is the ability to construct the terms on your own. You and your spouse always have the most information from which to draw up a fair and equitable resolution.

Going to Trial will often increase the cost of your divorce.

For a variety of reasons, proceeding to trial will normally increase the costs of your divorce in Virginia.
Attorney’s fees will often be far higher for a case that proceeds through an equitable distribution hearing than they would be for a case that is resolved by agreement.
Prolonging the divorce process will also increase the emotional costs as well. For most folks, dealing with a divorce is an incredibly traumatic experience and the sooner it can be finalized the better. Additionally, if there are children involved, they will inevitably experience an emotional toll from their parents’ divorce. Generally speaking, the longer things drag on, the greater the impact on the kids.

Going to trial may be the best option when your spouse is not offering a fair and equitable settlement.

While it is normally advantageous to settle your case without going to trial, one important exception to that rule would be when your spouse is unwilling to offer a reasonable proposal for resolution of the issues involved.
If your spouse is being unreasonable in their evaluation of the issues involved, their settlement offer is likely to reflect that evaluation and you should not feel forced into a settlement simply because it is usually wise to settle.
If you find yourself in this situation, it is important to speak with an experienced Virginia divorce attorney about your case. A good divorce lawyer can help you negotiate a fair and equitable resolution, or represent you at trial if settlement is not feasible.

The Virginia divorce attorneys at BoykoNapier can help you navigate through the murky road of settlement vs. litigation. The lawyers at BoykoNapier handle all types of divorce and family law cases throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. Contact BoykoNapier today at (804) 658-3418, or via email.

Child Support in Virginia: Understanding Shared Guidelines

February 18, 2015 By Marc Leave a Comment

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In Virginia, the child support amount that one parent pays to another is often calculated using support guidelines. Depending on the custodial arrangement that exists between the parents, a Court may choose between different types of support guideline calculations.

This post is a brief introduction to “shared” guidelines, which are often utilized for parents who have joint or shared physical custody. As you may recall from our previous child support posts, most of what you need to know about support guidelines in Virginia can be found in the child support guidelines statute: Virginia Code Section 20-108.2. This includes information about shared guidelines.

You may have asked (or been asked) the following question: if I get more time with my son/daughter, will I pay less in support? The answer is . . . maybe. It depends on how much custodial time you are exercising. Unlike “sole” guidelines (which do not consider the amount of custodial time that is exercised by the “non-custodial parent”), shared guidelines factor in the custodial arrangements between parents. Simply put, if the court uses shared guidelines, the more equal the custodial time between the parents, the less support that will be paid between them.

So, when will the Court use shared child support guidelines in Virginia?

In order to qualify for shared guidelines, the parent obligated to pay support must exercise at least 90 days of custodial time with the child during a calendar year.
It is important to note, that a “day” is specifically defined in the statute as “… a period of 24 hours; however, where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than 24 hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period.”
(Side note: as you can imagine, the number of “days” that a parent exercises is a topic that is frequently debated.)

If you are involved in a child support case, it is important to speak with an experienced Virginia family law attorney. You may be eligible for different child support guideline calculations that could have a positive impact on your case.

The divorce and family law attorneys at BoykoNapier are experienced in all manner of child support cases. Give BoykoNapier a call at (804) 658-3418 to discuss your case, or contact them via email.

Virginia Child Visitation – Finding the Right Arrangement

January 8, 2015 By Marc Leave a Comment

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If you have children and are separated or divorced from the other parent, chances are you have a visitation arrangement of some kind. It might be a simple understanding with no concrete terms, or it might be spelled out in detail and contained in a written Virginia court order. Whatever the case, it is important for separated parents to be open-minded about what visitation arrangement is best for their child. After all, kids change as they grow up, and what works today might be broken tomorrow.

We frequently have folks come to us with one question: How do I figure out what visitation arrangement is best? Unfortunately, we cannot answer that one for you. There is no person better equipped to answer that question than you, the parent. You have unique knowledge about your child, and about the kind of relationship (or lack thereof) they have with the other parent. Only you will know if the right arrangement for your child requires a dozen provisions to iron out every possible scenario, or if the right arrangement is to leave the options open at all times.

Common General Visitation Arrangements:

“Every Other Weekend” – very typical for school-aged children, this arrangement normally provides the non-custodial parent with visitation on alternating weekends, usually from Friday evening to Sunday evening. Additional visitation time could include weekday dinner visits or participation in extracurricular activities.
“Fifty/Fifty” – also referred to as joint physical custody, this arrangement provides each parent with an equal amount of visitation time with the child. Often, this is week-on week-off. However, some parents split the week and alternate weekends, while some alternate every day. There are also some parents who get limited time during the school year, but get the entire summer and most holidays in order to achieve a true fifty/fifty arrangement.
“Shared” – a shared visitation arrangement (also called shared physical custody) describes a situation where both parents have a substantial amount of visitation time, though not necessarily fifty-fifty. For example, a parent who receives three-weekends a month during the school year, and every other week during the summer would usually be considered to have shared custody of their child. As you can imagine, the types of visitation arrangements that fall under this category are numerous and often times very creative.
“Supervised” – a supervised visitation arrangement in Virginia is a situation where the non-custodial parent’s visitation time must be supervised by another person. This is usually a third-party relative, though it may be the other parent or even a formal facility that provides supervision.

(Note: the phrase “general visitation” is often different from holiday and summer visitation. Many parents will have an additional visitation arrangement for major holidays, and allot additional visitation time during the summer months.)

If you are looking for factors to guide your decision, it might be helpful to glance at the “best interests statute” (Va. Code 20-124.3), which sets forth the factors that Virginia judges are required to consider when determining a visitation arrangement. However, you are not limited by these factors. Use your best parenting skills to figure out what visitation arrangement would best suit your son or daughter. Even if you cannot reach an agreement with the other parent, at least you will be prepared to articulate your desired outcome to your attorney, or to a judge or mediator.

If you have a questions about your child visitation case, it is important to speak with an experienced Virginia family law attorney. The lawyers at BoykoNapier are experienced in all types of family law and divorce cases, including child custody, visitation and support. Our attorneys represent clients throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. Call BoykoNapier at (804) 658-3418 to schedule a consultation, or contact us via email.

Virginia Child Custody: Legal vs. Physical

November 17, 2014 By Marc Leave a Comment

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In Virginia child custody cases, many folks mistakenly believe that the phrase “joint custody” always means that parties share custodial time with their child. However, in Virginia, there are two types of custody: legal custody and physical custody. If you are dealing with child custody and visitation issues, it is important to know the difference.

What is Legal Custody?

Most parents have joint legal custody. According to Virginia Code Section 20-124.1, “joint legal custody” means that parents have “joint responsibility for the care and control of the child and joint authority to make decisions concerning the child . . .” Thus, parents with joint legal custody should collaborate and discuss important issues involving their child.

“Sole legal custody” would therefore refer to a situation where one parent holds the decision-making authority in reference to the child.

What is Physical Custody?

According to Virginia Code Section 20-146.1, “‘Physical custody’ means the physical care and supervision of a child.” Joint physical custodians would thereby “share physical and custodial care of the child,” according to Section 20-124.1.

So, when you are discussing child custody, remember the distinction and be sure to address both “legal” and “physical” custody. Also, remember that you can have “joint legal custody” and/or “joint physical custody”; just because you have joint legal, doesn’t mean you have to have joint physical.

If you have a questions about your child custody case, it is important to speak with an experienced Virginia custody lawyer. The attorneys at BoykoNapier are experienced in all types of family law and divorce cases, including child custody, visitation and support. Our attorneys represent clients throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. Call BoykoNapier at (804) 658-3418 to schedule a consultation, or contact us via email.

Virginia Divorce: Let Your Lawyer Handle It

September 25, 2014 By Marc Leave a Comment

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Let us face facts: Divorce is an emotional roller-coaster on a good day. For most people, going through a separation and a divorce is nothing short of traumatic, even if the divorce is uncontested.

Inevitably, you will be required to make decisions along the way that impact you and your family; some decisions will be minor, and others will not. If you have decided to “take matters into your own hands,” we urge you to reconsider.

The divorce process in Virginia is complicated and confusing. There are legal issues at every turn, and you may not be fully equipped to address these issues. It is important that you consult with an experienced Virginia divorce lawyer before diving, head-first into the world of family law. The right divorce attorney can help you make the important decisions, and will be a vital source of information throughout the process.

Acting without (or against) legal advice may have a very severe impact on your future. For example, if you receive a document from your spouse that purports to resolve some (or all) of the issues, it might appear very fair and equitable to you. However, you might not fully comprehend some of the language, and your signature may cause you to waive certain claims that you would have otherwise had, such as a claim for spousal support, or perhaps a lucrative claim towards a share of a retirement account held by your spouse.

Too often, we meet with individuals who have suffered due to their failure to promptly consult with an experienced Virginia divorce lawyer. Please do not let that be you. Our suggestion: speak with a divorce lawyer as soon as you believe that a separation is imminent. If nothing else, the consultation should help you avoid many of the common pitfalls.

BoykoNapier is based in the Richmond area and we are proud to represent citizens throughout Central Virginia, including Henrico, Chesterfield, Hanover and the surrounding localities. If you are going through a separation or divorce, please contact us. Our attorneys are experienced in all aspects of Virginia divorce and family law issues. Call us today at (804) 658-3418, or contact us via email.

“I Want Custody” – How to File in Virginia

September 15, 2014 By Marc Leave a Comment

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“I want to file for custody of my child. How do I do that?” As you can imagine, this is one of the most common questions posed to a Family Law Attorney. Because filing for child custody or visitation is a stressful and confusing endeavor, we wanted to take a few minutes to share some information. However, we cannot offer specific legal advise in this post because every case is unique. That being said, we strongly encourage you to speak with an experienced Virginia Family Law Attorney about your circumstances.

Issue 1: What do I file in Virginia?

In Virginia, custody and visitation cases are normally initiated when a parent or other interested party files a “Petition”. This assumes that there has never been any other court cases involving your child (if so, you would likely need to file a different pleading known as a “Motion to Amend”) and that Virginia has jurisdiction (see below).

Depending on the locality where your Petition is filed, you may have to make an appointment. You will also typically be required to pay a filing fee, and to fill out a Uniform Child Custody Jurisdiction and Enforcement Act Affidavit. Because of the varying policies of the different localities, it is advisable that you contact the locality where you plan to file in advance, or do some online research–Henrico County, for example, posts information about filing petitions on their website.

Issue 2: Where do I file?

This question is very case specific and consultation with a Virginia child custody attorney is highly recommended. In order to determine where to file, several additional questions must be answered first in order to determine what state and locality has jurisdiction over custody and visitation of your child (i.e. what state/locality has the legal authority to make a ruling on custody/visitation).

Can you file in Virginia? Briefly put, here are a few of the common issues that could potentially disrupt Virginia’s jurisdiction:

There is an existing court order from another state regarding custody and visitation;
Your child lives in another state;
Your child has lived in Virginia for less than six months and another parent lives outside of Virginia.

Assuming Virginia has jurisdiction, another significant hurdle is determining what city or county you should file in. If you have never been to court before regarding your child, you will most likely want to file your petition(s) in the Juvenile and Domestic Relations District Court in the city or county where your child resides. However, there are numerous issues that could impact this as well: for example, if the other parent of your child just moved out and took your child and moved to another locality, you may want to file where you live, and not in the locality where the child is now located. Long story short, speak with an attorney to go over your specific circumstances to be sure you are filing the appropriate documents in the appropriate location.

Issue 3: What Will Happen After I File?

Procedurally speaking, you will usually get a court date where a judge will make decisions regarding the issues before him or her (i.e. custody and visitation of your child). Every city/county has their own policies and procedures that you will want to familiarize yourself with. For example, the timeframe between filing your petition and your first court date will be different depending on where your case is being heard. Counties and cities in the Richmond area tend to have busier dockets than some smaller counties. Additionally, some localities refer parties to mediation and/or parenting classes prior to the Court date (or sometimes following the first Court date). There are also a variety of other issues that could arise during your case, including: the appointment of a guardian ad litem to represent your child; psychological evaluations; counseling requirements; and the list goes on.

The attorneys at BoykoNapier are experienced in all types of Child Custody and Visitation matters in Virginia. Our attorneys handle cases throughout Central Virginia, including Richmond, Chesterfield, Henrico, Hanover and the surrounding communities. Call us to schedule a consultation at (804) 658-3418, or contact us via email.

Difficulties in Divorce: Settling Before Court

June 23, 2014 By Marc Leave a Comment

In Virginia Divorce cases, we work hard with our clients to attempt to resolve each case by settling out of court.

Believe it or not, in our experience, most cases are resolved before Court. Why is that?

Because it is almost always in everyone’s best interest to finalize a case as quickly as possible.
The parties save money and time, and shield themselves from unnecessary emotional turmoil that naturally comes from battling things out in a courtroom.
If you have children, it is even more important to reach a resolution; the longer litigation lingers, the more your children will get dragged into the middle.

Suffice it to say, you should strongly consider an out of court settlement, provided the terms are reasonable and equitable. How do you decide when a settlement offer is reasonable and fair? Great question. The answer depends on the facts of your case. This is one area where your attorney’s experience will play a significant role.

Communication directly between Attorneys

Perhaps the most common avenue to a settlement is the correspondence between the attorneys who represent the respective spouses. Many cases have very few contested issues, making it relatively simple for the attorneys to help the parties resolve the case after just a few phone calls, emails or letters back and forth. If the issues haven’t been resolved, or at least narrowed, after a few exchanges, it is probably time to consider other settlement methods.

Settlement Conference

A settlement conference is a face-to-face meeting between the parties and their attorneys to allow the parties to converse with each other about their respective positions. Settlement conferences are certainly emotional (far more so than exchanging letters), but they are usually very productive because communication between the parties in-person is one of the best ways to help them reach agreeable terms.

It is common for a Judge to require parties to attend a settlement conference prior to their trial date. If you have been unwilling to attend a settlement conference for one reason or another, we would urge you to reconsider. Speak with your attorney about the benefits of such a conference and you just might decide to change your mind.

Mediation in Divorce Cases

Similar to a settlement conference, a Mediation is a meeting between the parties to discuss settlement. The difference here is that a neutral individual (the “mediator”) is present to assist the parties by facilitating discussions and making recommendations. The mediator is often someone trained in the law (a lawyer or a judge), who will help guide the parties towards a resolution by analyzing the facts and the legal issues involved in the case. Mediation has a high success rate and is therefore a very popular settlement tool.

Property Settlement Agreement

In Virginia, once the parties reach an agreement, the terms of that agreement are often put into a written contract referred to as a “separation agreement” (or “PSA” for property settlement agreement). The PSA should spell out all of the terms of the parties’ agreement and should be filed with the Virginia Court when the parties finalize their divorce. You can read more about property settlement agreements here.

The family law and divorce attorneys at BoykoNapier are experienced trial attorneys. We handle cases through Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. If you have questions about a separation or divorce, call us today at (804) 658-3418, or contact via email.

Difficulties in Divorce: Dealing with Retirement Accounts

May 5, 2014 By Marc Leave a Comment

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Any Virginia Divorce Lawyer will tell you that the first consultation with a potential client is a difficult task. Going through a divorce is a painstaking process, especially when the parties have significant marital assets and/or debts to distribute.

One of the most common headaches is figuring out how to divide retirement accounts. Most people are exceedingly frustrated to learn that they might have to fork over a portion of their retirement to their ex-spouse (the frustration boils if their spouse is the one seeking a divorce). We thought it would be appropriate to answer a few FAQs.

What portion of your retirement account does your spouse get under Virginia law?

As with most things, it depends. Only the “marital” portion of a retirement account is subject to division and distribution by a Judge. Generally speaking, the marital portion of your retirement account is the amount of your contributions from the date of your marriage to the date of your separation (appreciation/depreciation of that amount is typically considered as well). However, what your spouse actually gets really depends on the other circumstances of your case.

Are there ways to avoid giving your spouse a portion of your account?

In many cases, yes! There are several ways to potentially avoid splitting up a retirement account. A couple of common examples:

Even if you have a retirement account with marital assets that is subject to distribution by the Court, so too might your spouse. His or her accounts might offset or exceed your own. If that is the case, you might not have to divide up the retirement account in your name.
You may have other assets that could offset the retirement, or you might be able to assume marital debts to make up the difference.

What is a QDRO?

A QDRO (qualified domestic relations order) is a Court Order that divides up a retirement account. Once the order is signed by a Virginia Judge, it is usually forwarded to the company holding the retirement assets. Ordinarily, that company will review the QDRO and, once it is approved, they will divide the retirement funds into two accounts, one for each spouse. For more information, look at our QDRO Page.

Can the Court split up a Pension Plan?

Yes. The Court can also order the division of pension plans and military retirement accounts. Typically this is done with a QDRO, resulting in a portion of the account holder’s monthly payment being diverted to their ex-spouse.

If you are going through a divorce in Virginia and have retirement assets, it is important to speak with a experienced divorce attorney for specific advice. There are ways to protect your interests and the right divorce lawyer can help. At BoykoNapier, our attorneys have experienced dealing with complex marital retirement issues. Call us at (804) 658-3418, or contact us via email to discuss your case today. We handle cases throughout Central Virginia, including Richmond, Chesterfield, Henrico, Hanover and the surrounding localities.

Child Support in Virginia: What You Should Know About Upcoming Changes in the Law!

April 16, 2014 By Marc Leave a Comment

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Our legislature has stepped up to the plate and enacted new child support laws and guidelines. The new guidelines will mark the first amendment in over 25 years. Highlighted below are two significant changes to the Virginia Child Support laws:

Child Support Guidelines

If you look at the current Virginia Child Support Guidelines statute (Va. Code 20-108.2), you will see a long table with presumptive monthly child support obligations, based on the combined monthly gross incomes of the parents–aptly titled “Schedule of Monthly Basic Child Support Obligations”.

This table will be different in July 2014 when the amended statute takes effect. If you look at the revisions (here: HB 933), you will immediately notice the differences. The most notable:

There are new minimum amounts for the lowest income range, and the support figures change depending on the number of children.
The new guidelines have specific support figures for combined gross incomes over 10,000, all the way up to 35,000.

Should you file to amend your current order based on these new child support guidelines?

Possibly! Depending on the circumstances, the new law may substantially increase or decrease the support amount in your case. We would strongly suggest that you consult with an experienced family law attorney to determine whether the new law would lead to a deviation from the current amount that is significant enough to warrant the filing of a motion to amend your support order.

Unreimbursed Medical Expenses

The current law requires that the custodial parent foot the bill for the first $250.00 in “reasonable and necessary unreimbursed medical or dental expenses” for each child who is the subject of the support order (unless the parties otherwise agree, or good cause is shown as to why this should not be the case). After the first $250.00, the parties typically divide additional unreimbursed expenses in proportion to their gross incomes. See Virginia Code 20-108.2(D).

The new law removes the $250.00 threshold. This means that, absent good cause or an agreement to the contrary, the parties will proportionately divide all reasonable and necessary unreimbursed expenses. This is a significant change for custodial parents—especially those with 2 or more kids who have currently been obligated to pay $500+ each year in unreimbursed expenses, before the other parent even becomes responsible for a portion.

Should you file to amend your current order based on this change in the law?

If you are the custodial parent and your order requires you to pay the first $250.00 of unreimbursed medical expenses, you should contact a Virginia family law attorney to discuss your options. It may be worthwhile to pursue an amendment to your order.

The Virginia trial lawyers at BoykoNapier practice family law throughout the Richmond area, including Henrico, Chesterfield, Hanover and the surrounding localities. If you are considering a review of your child support order, contact BoykoNapier today at (804) 658-3418, or contact us via email.

Difficulties in Divorce: Filing Your Tax Returns

February 14, 2014 By Marc Leave a Comment

It’s that time of year: Tax Time!

Each year, as the dreadful deadline of April 15 approaches, we are confronted with questions from clients about how they should deal with filing taxes. These inquiries are so common we thought it might be beneficial to post a few bits of information in order to highlight some issues that frequently arise. Please note: you should be sure to speak directly with your tax-advisor or attorney for specific advice regarding your tax filings.

Situation A: Separated, but not yet Divorced.

Do I file jointly or separately?
Who claims mortgage interest deductions?
Who claims the children?

These are very good questions. If you have a current custody and/or support order, or a property settlement agreement, be sure to check whether these issues are addressed. It is common for court orders and agreements to address all of these issues, as it makes the process of filing taxes easier on both spouses. It would also be wise to consult the Internal Revenue Service’s website, as it answers a lot of common questions.

It is important to speak with your tax-advisor or attorney before deciding whether to file jointly or separately. Often times, it will make more financial sense to file jointly because of the tax benefits—however, a joint filing can create arguments over how to divide the tax return. It is common for the tax refund to be held in escrow by your attorney until you and your spouse can agree on the division of the refund. If your spouse claims a deduction (i.e. mortgage interest, children) that you believe you might be entitled to, it would be wise to immediately consult an attorney or tax-advisor.

Situation B: Separated part of the year, Final Decree of Divorce entered in the tax year.

Do I have to file jointly?
Can I file separately?

Again, great questions. If this situation applies to you, we strongly suggest you refer to the Internal Revenue Service’s website and the Virginia Department of Taxation website. If your divorce was finalized, be sure to double check your divorce decree to determine if these issues are addressed.

Can I be held liable for my soon to be ex-spouse’s tax debt?

Maybe! If your husband or wife has tax debt/liens which you are aware of, be sure to bring this to your attorney’s attention. If you have already filed and the IRS has put you on notice that a portion or all of your tax return will be deducted for your ex-spouse’s tax debt, contact an attorney right away. You should also refer to the Innocent Spouse Relief information through the IRS website. You can apply to be held harmless from your spouse’s tax debt under certain circumstances.

If you have additional questions, please contact the attorneys at BoykoNapier. Our Virginia family law and divorce lawyers handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding communities. Please call us at (804) 658-3418, or contact us via email.

Call: 804-658-3418