Virginia Archives - BoykoNapier, PLLC

BoykoNapier Selected as Super Lawyers Rising Stars!

April 21, 2017 By Marc Leave a Comment

BoykoNapier, PLLC is pleased to announce that Marc A. Boyko and Mary A. Napier have been selected to the 2017 Virginia Super Lawyers Rising Stars list for Family Law. Each year, no more than 2.5 percent of the attorneys in the state of Virginia are selected by the research team at Super Lawyers to receive this honor. Our attorneys would like to thank their colleagues in the Richmond area for the nominations and support that led to this incredible recognition.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding attorneys from more
than 70 practice areas who have attained a high degree of peer recognition and professional
achievement. The annual selections are made using a patented multiphase process that includes a
statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by
practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city
and regional magazines and newspapers across the country. Super Lawyers Magazines also feature
editorial profiles of attorneys who embody excellence in the practice of law. For more information
about Super Lawyers, visit SuperLawyers.com.

If you are in need of a divorce or family law attorney, contact BoykoNapier at (804) 658-3418, or via email.

Virginia Child Custody Tip: The Importance of Co-parenting

May 5, 2016 By Marc Leave a Comment

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Co-parenting is no easy task, especially when your relationship with the other parent has ended and you are living in different homes. Nevertheless, it is very important that you dedicate time and energy towards building good co-parenting skills.

Life will be a lot brighter and less stressful (for you and your child) if you and the other parent can have positive, productive communication and make decisions effectively. This post is designed to provide a few tips for co-parenting from a Virginia family law attorney’s prospective. This information is not intended as legal advice, as every co-parenting relationship is unique. Should you have specific questions regarding your custody or visitation case, be sure to speak with an experienced divorce or family law attorney.

Focus on Your Child.
- Be sure to remember that co-parenting is all about your child. Your child’s best interest should be the focus.
- While it is easier said than done, try not to let emotion get in the way, whatever your personal feelings about the other parent may be.
Set Co-parenting Boundaries (if necessary).
- If you and the other parent are frequently engaged in conflict when you interact, use methods that are less-prone to produce controversy and are more productive.
- For example, if phone calls or in-person discussions often lead to arguments and rarely lead to solutions, consider written correspondence (such as email or text) as a primary method of communication.
Be Responsive and Informative.
- One of the best ways to maintain respect in your co-parenting relationship is to be responsive and informative.
- Do your best to answer calls and respond to emails. Giving and receiving information about your child should be a priority, not a burden.
Avoid Negativity to Avoid Conflict.
- The Golden Rule is important in all aspects of life, but particularly in co-parenting. Complaints, blame, and unwarranted criticism will often degrade your relationship with the other parent and negatively impact your ability to communicate effectively.
- Try and be positive when communicating about your child. If you have a grievance with the other parent, consider offering practical solutions to prevent the issue from resurfacing in the future.
Two Wrongs Don’t Make a Right.
- Just because the parent of your child is not co-parenting effectively (i.e. they are non-responsive, negative, or constantly sparking controversy) doesn’t mean that you should do the same.
- Which parent communicates the best is often an important factor for a Judge who is considering child custody or visitation issues. Take a look at our Child Custody and Visitation Factors blog post and Virginia Code 20-124.3 to learn more about all of the Virginia child custody and visitation factors (a.k.a. the best interests factors).

We hope these tips will help you in your co-parenting relationship. If you find that your co-parenting relationship is an ongoing struggle, it may be wise to consider speaking with an experienced co-parenting counselor.

If you have specific questions about your Virginia child custody or visitation case, feel free to contact us. The experienced lawyers at BoykoNapier handle divorce and family law matters through Central Virginia, including Richmond, Chesterfield, Henrico, Hanover and the surrounding localities. Contact BoykoNapier at (804) 658-3418, or via email.

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

December 4, 2015 By Marc Leave a Comment

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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: What Assets and Debts Are Divided?

October 19, 2015 By Marc Leave a Comment

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In Virginia, the division of assets and debts is often a major point of concern for individuals seeking a divorce. Generally speaking, divorcing parties will divide “marital” assets and debts. If the parties are unable to reach an agreement, they will have a Virginia Circuit Court Judge determine how to divide the marital assets and debts. Because court-division is timely and expensive, many people resolve these issues by agreement. However, it is critical that you understand what assets/debts are “marital” and subject to division; individuals often fail to recognize what property is subject to being divided, potentially resulting in them reaching an agreement to waive property rights worth thousands of dollars!

The difference between “marital” and “separate” assets is described in Virginia Code Section 20-107.3; it may seem simple based on the plain language of the statute, but there are several common misconceptions. Here are some true/false inquiries to highlight the misconceptions:

T/F: My spouse has the boat and I don’t ever really use it so he is automatically able to claim the property as separate.
- Answer: False. Actual possession and use does not generally dictate whether a piece of property is marital or separate.
T/F: Our house is deeded in my husband’s name, so it’s automatically his property and I don’t have any interest.
- Answer: False. Just because a piece of property is deeded or titled in one spouses name does not necessarily mean that the other spouse doesn’t have an interest.
T/F: My husband has credit card debt his his sole name, but I might be required to pay for some if it was accrued during marriage even though I’m not on the account.
- Answer: True. As with property mentioned above, just because a debt is in one spouses name does not necessarily mean that the debt will be “separate” – in fact, if it was accrued during marriage, there is a good chance it will be classified as marital or part-marital (a.k.a. “hybrid property”).
T/F: My spouse and I keep separate bank accounts so we each keep what we have no matter what.
- Answer: False. Just because both parties have similar accounts in their own name does not necessarily mean that the accounts are not “marital” and subject to division by a Court.

In Virginia divorce litigation, the classification of property as marital or separate and the determination of your rights in such property is controlled by the definitions and language of Virginia Code § 20-107.3, which may not match one’s preconceived notions. If no agreement is reached, it is the responsibility of the parties to accurately and effectively present the court with the information to properly classify property for allocation. Parties failing to meet a burden of showing evidence to support a certain classification of property, or parties failing to recognize all marital property when signing a Property Settlement Agreement, may quickly lose valuable property interests. Please understand that this post is designed to provide very general information; every case is unique, and it is important that you speak with an experienced divorce attorney about property issues in your case.

Whether you believe you and your spouse are heading toward a highly contested divorce or you believe that a settlement is the likely outcome, the experienced Virginia divorce lawyers at BoykoNapier are available to assist. If you have questions about your case, call us at (804) 658-3418, or contact us via email.

Virginia Custody and Visitation Cases – What Do I File?

August 31, 2015 By Marc Leave a Comment

When entering (or re-entering) child custody litigation, the legal documents that parents file determine which set of legal standards and procedures will be applied. Throughout the lifetime of a child, parents may commence custody and visitation cases by filing initial petitions, motions to amend, or de novo appeals (not to mention appeals to higher appellate courts, which will not be addressed in this post). What are these different stages, why are these filings important, and how can an experienced family law and divorce attorney at BoykoNapier help you successfully navigate this terrain? Please keep in mind that all cases are unique and you should consult with an experienced Virginia lawyer about what to file for your particular case.

Initial Petition in Virginia Juvenile Court/Complaint for Divorce in Circuit Court

When parents have not previously litigated custody and visitation issues and are seeking to open a case with the Virginia Juvenile Court, they will be directed to file “initial petitions”. Even if parents have been operating under an informal agreement for several years before going to court, the proceedings are still initiated by the filing of initial petitions in Juvenile Court. Generally speaking, if a Court is a proper forum (i.e. proper jurisdiction and venue) to hear the case, there is no legal threshold required in order file an initial petition. The court’s paramount concern will be “what is in the best interest of this child?” The Court will be guided by the factors contained in Virginia Code Section 20-124.3.

Another common court filing that also initiates child custody and visitation issues is a Complaint for Divorce, which is filed in Circuit Court. When parents of a minor child are married and seeking a divorce, the Judge in Circuit Court will also have the ability (a.k.a. jurisdiction) to make a decision and enter an order regarding child custody and visitation.

Motion to Amend (aka “Modification Petition”) in Virginia Juvenile Court

If parents return to court after a final custody and visitation order was entered, they will normally do so by filing a Motion to Amend. A Motion to Amend is a motion filed with the court that requests a change to the current child custody/visitation order. Unlike initial petitions where there is not generally a legal threshold required to file, to prevent parents from continuously filing to change a court order, the party who files a Motion to Amend is usually required to prove that there has been a “material change in circumstances” since the entry of the last court order. If the moving party is successful in proving that there was a material change in circumstances, the court will again analyze what result would be in the best interest of the child before determining whether or not to change the order.

De Novo Appeal in Virginia Circuit Court

Following any child custody or visitation determination in a Virginia Juvenile and Domestic Relations Court, each party has the right to appeal the case to Circuit Court. These appeals are referred to as “de novo” (which means starting over), because the Circuit Court will not consider the evidence presented before the Juvenile Court. Instead, the Court will hear the entire case again, just as if it had not already been presented before a Juvenile Court. As you can imagine, it is not uncommon for the appeal to result in a drastically different result. The legal standard to be applied by the Circuit Court depends on the type of petition brought before the Juvenile Court.

Speak with a Virginia Child Custody/Family Law Attorney

It is important that any litigant in a custody dispute understand the proper petition/motion to file and the applicable legal standards. The attorneys at BoykoNapier are experienced in all manner of family law and divorce cases. Our lawyers will assist you through each of the steps of custody and visitation proceeding. For questions about your custody or divorce case, call (804) 658-3418, or contact us via email.

The Ins and Outs of Supervised Visitation in Virginia

May 22, 2015 By Marc Leave a Comment

In Virginia, Judges have the authority to order that a person’s visitation with their minor child be supervised. Because we receive tons of questions about supervised visitation, we thought it would be good to create a short post with some basic information.

What is supervised visitation?

Supervised visitation is when a parent who is visiting with their child has another individual (a.k.a. “the supervisor”) in their presence to ensure that the visitation is safe and appropriate for the child.
The role of the supervisor is an important one; the supervisor is tasked with monitoring the parent’s behavior and interactions with the child during the visitation.

Why would a Judge order supervised visitation?

While there are a variety of situations in which a court might order supervised visitation, here are a few common examples:

Drug or alcohol use. If the non-custodial parent has a history of drug or alcohol abuse, the court may order supervision during visitation.
History of poor parental judgment. If the non-custodial parent has made parenting decisions that have put the child in danger, or that have otherwise negatively impacted the child, a court may order supervised visitation.
Mental illness. If the non-custodial parent has a history of severe mental health issues, a court may order supervised visitation.
History of Family Abuse or Anger problems. If the non-custodial parent has a history of family abuse or anger issues, a court may order supervised visitation (as well as an anger management course in certain cases).
Lack of involvement. If a parent has not been consistently involved in their child’s life, a Court may order supervision to ensure that there is a smooth transition for the child while they build (or rebuild) their relationship with the parent.

Who is the supervisor?

It really depends on the case. In some situations, the Court will allow the custodial or non-custodial parent to select an appropriate supervisor, or required that the parents use a mutually agreeable supervisor. In other cases, the Court will select the supervisor, or order that the visitation take place at a special facility that will supervise the visits in a controlled environment.
For custodial parents, if you are allowed to select the supervisor, it is important to select someone whom you trust to be your eyes and ears during the visitation; you want to use someone who will report back to you in the event of any issues with the visitation.
For noncustodial parents, if you are allowed to select the supervisor, be sure to select someone reliable who is going to show up on time and be available for each visitation.

If you have questions about supervised visitation in Virginia, it is important to speak with an experienced family law attorney about your case. The lawyers at BoykoNapier are experienced in all aspects of family law and divorce matters, including complex child custody and visitation cases. BoykoNapier handles cases throughout the Richmond area, including Henrico, Hanover, Chesterfield and the surrounding localities. For questions about your custody or divorce case, call (804) 658-3418, or contact them via email.

Driving on a Suspended License – Virginia’s Vicious Cycle

May 12, 2015 By Marc Leave a Comment

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In Virginia, your driver’s license can be suspended or revoked for a number of reasons, the most common among them: failing to pay court fines and court costs, failing to pay child support, a conviction for a drug offense (i.e. possession of marijuana) and a conviction for reckless driving or driving under the influence (“DUI”).

The problem with suspending or revoking a person’s driver’s license is most people need to drive to get to work; if they can’t get to work, they can’t pay their court fines or court costs (or their other monthly bills for that matter). So what happens? People decide to risk it, and drive. If they get pulled over before they get their license reinstated, they will likely get charged with driving on a suspended license. The punishment for driving on a suspended license is the root of the vicious cycle.

Driving on a suspended license is a Class 1 Misdemeanor offense.

See Virginia Code Section 46.2-301.
A third or subsequent conviction requires at least 10 days in jail, and many Central Virginia Judges will order active jail time on a second offense.
A conviction also yields court fines and court costs, and a license suspension period (typically 90 days) that a Judge is required to impose for each conviction that tacks on to the end of all previous suspensions.

As you can see, the more convictions one receives the more difficult it becomes to crawl out of the hole – mounting court fines and license suspensions leave many folks without an easy path to get their license reinstated. On top of that, sizable jail sentences can cause people to lose their jobs which creates further financial turmoil.

The bottom line is that a driving on suspended charge is something that should be taken very seriously. A good criminal defense attorney can be a vital asset and can assist you throughout the process in order to help you achieve a positive outcome.

The Virginia criminal defense attorneys at BoykoNapier are experienced in all manner of traffic and criminal offenses. If you have a question regarding your driving on suspended case, call the lawyers at BoykoNapier at (804) 658-3418, or contact them via email.

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.

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.

Call: 804-658-3418