Separation Archives - BoykoNapier, PLLC

Virginia Divorce: Living Separately in the Same House

May 9, 2020 By Marc Leave a Comment

colorful houses — Courtesy of Sean O’Neill via flickr.com license link

In Virginia, spouses who wish to file for divorce are often required to prove that they have lived separate and apart for a period of time–usually 1 year, though it may be 6 months (if the parties have no children and executed a separation agreement).

Often, “separate and apart” means separate residences. But not always. Under Virginia law, spouses can live separately under the same roof.

In Bchara v. Bchara (2002), the parties were deemed to have been living separate and apart despite residing in the same home. They stopped attending church together; moved their belongings into separate rooms; slept in separate rooms; ceased intimacy; Wife stopped depositing funds into the joint bank account; and a friend of Wife’s visited the home regularly, and was able to corroborate the circumstances. While the Court’s decision was based on these unique factual circumstances, the decision provides some good guideposts to follow.

Tips for Residing Together During Separation

Communication – Tell your spouse that you are intending to be separate, and that your intention is permanent.
Finances – Open separate bank accounts and limit the commingling of funds when possible; avoid paying bills out of a joint account.
Inside the Home – Sleep in separate bedrooms; do not engage in physical intimacy; do not cook for each other or clean for each other.
Outside the Home – Avoid going places together; church/vacations/parties/dinners/holidays should not be attended together; do not shop for each other; remove your wedding ring and do not hold yourselves out as being a couple to others.
Build Corroborating Evidence – Tell your friends and family that you are separated, and advise them of the steps you are taking to remain separated; invite them to your home frequently so that they can observe you and your spouse living in different rooms and not sharing in any activities.

Please note that following the above listed tips will not guarantee a determination that you are living separate and apart. As noted above, every case is unique.

If you have questions about living separately in the same home with your spouse, please contact an experienced Virginia divorce and family law attorney at BoykoNapier. We can be reached by phone at (804) 658-3418, or by email.

*This post is not intended to offer specific legal advice.

Same-Sex Marriage in Virginia: Divorce, Custody and Adoption

December 4, 2015 By Marc Leave a Comment

Flag — Courtesy of Ted Eytan via flickr.com license link

With its decision in Obergefell v. Hodges, the United States Supreme Court ruled that all states are required to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly performed in other jurisdictions. While the Supreme Court provided clarity on the issue of same-sex marriage, practitioners and same-sex couples are now facing new legal questions in the areas of divorce and child custody.

Virginia Same-Sex Divorce Concerns:

At first blush, it would appear that the divorce of same-sex couples would not raise any novel legal issues. However, an interesting question on a seemingly simple point, “what is the date of marriage,” could have large impacts in Virginia divorce litigation. For couples married after the Obergefell decision, the date of marriage will be easy to determine, but, what about couples married before the decision?
For example, take a same-sex couple married in Maryland in 2013 and now divorcing in Virginia. Would a Virginia Court consider the date of marriage to be the date in 2013 (a time when Virginia did not recognize same-sex marriage), the date in July 2014 when the Federal District Court for the Eastern District of Virginia ruled Virginia’s ban on same-sex marriage unconstitutional, the date in August 2014 when the Fourth Circuit Court of Appeals upheld this decision, the date in October 2014 when the Supreme Court of the United States denied certiorari for the appeal, or some other date entirely?
While the issue of date of marriage may seem rather insignificant when contemplating divorce, the decision on this question can have a large impact. Moving the date of marriage will shorten, or extend, the overall duration of the marriage, a factor that courts are required to consider when determining spousal support (see Virginia Code 20-107.1) and ruling on property distribution (see Virginia Code 20-107.3).
More importantly, a later date of marriage can greatly affect the classification of property as “marital”, “separate”, or “part-marital”/”hybrid” property. Because property acquired by a party prior to the marriage is generally separate property and not subject to distribution by a Court, while property purchased during the marriage is generally marital property, a shifting of the date of marriage could result in a substantial shift of property from marital property to separate property of one party. For additional information on this point, please review our recent post about property and debt classification in a Divorce: Virginia Divorce: What Assets and Debts are Divided?

Virginia Same-Sex Child Custody and Visitation Concerns:

Issues may also arise in the areas of child custody and visitation and parental rights. Parental rights, and the custody and visitation rights that go along with them, are generally granted to legal parents, either biological or adoptive. For same-sex couples, it is often the case that at least one partner will not be deemed a “biological” parent to the child. It will be interesting to see the evolution of this issue as Courts begin to interpret the statutory language and subsequent court opinions in Virginia.
The best way to avoid the above issues regarding custody and parental rights in Virginia may be through a “step-parent adoption” pursuant to Virginia Code 63.2-1241. Such adoptions may often be completed with the consent of the birth parent who acted as a surrogate or sperm donor, by a showing that the identity of the sperm donor is not reasonably ascertainable, or through litigation showing that the consent of the other birth parent is being withheld contrary to the best interest of the child.
See also Virginia Code 20-158.

If you are faced with a legal issue involving same-sex marriage, it is as important as ever to have an attorney on your side as you navigate the new legal issues. The experienced Divorce and Family Law Attorneys at BoykoNapier are here to help. For questions about your case, call (804) 658-3418, or contact us via email.

Virginia Divorce: Let Your Lawyer Handle It

September 25, 2014 By Marc Leave a Comment

Courtesy of wsilver via flickr.com license link — Courtesy of wsilver via flickr.com
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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.

Difficulties in Divorce: Settling Before Court

June 23, 2014 By Marc Leave a Comment

Richmond Skyline — Courtesy of Ron Cogswell via flickr.com
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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: 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.

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.

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