Virginia Code Archives - BoykoNapier, PLLC

Virginia Spousal Support: Reaching Retirement Age

May 15, 2018 By Marc Leave a Comment

Courtesy of Franck Michal via flickr.com
license link

On July 1, Virginia’s law regarding spousal support modification is going to change in a big way. The legislature has enacted an amendment to the existing law which will increase the potential for spousal support to be modified or terminated when a person reaches their full retirement age.

According to various sources, it appears that the divorce rate among older couples has been dramatically increasing in recent years–this has been referred to as the “gray divorce revolution”. This trend has presumably paved the way for legislative changes which take into account specific needs unique to older couples.

The law governing spousal support modification is set forth in Va. Code §20-109. For support obligations that are deemed to be modifiable, a party seeking to amend or terminate their spousal support payment generally needs to prove a “material change in circumstances”. As you can imagine, there is a lot of litigation regarding what constitutes a “material change in circumstances”–particularly in cases involving persons who are retired, or are seeking to retire.

With this upcoming amendment (which you can review here: Spousal Support Amendment to 20-109) the new law will specify that reaching full retirement age can serve as a material change in circumstances. Under the new Va. Code §20-109, Judges will need to consider several factors relating to the unique circumstances of an individual’s retirement in determining whether a modification is appropriate. The courts will also be able to take into account the assets and property of both parties in determining whether a modification is proper.

If you have any questions about how the new Virginia Spousal Support law may impact your case, contact an experienced Virginia divorce lawyer at BoykoNapier today. Our attorneys handle divorce, family law and support matters throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. To contact a BoykoNapier attorney, call 804-658-3418, or you may reach us via email.

Virginia Child Support: Understanding Imputation of Income

January 12, 2017 By Marc Leave a Comment

Richmond Skyline — Courtesy of Mobilis in Mobili via flickr.com

In Virginia child support cases, imputation of income can have a substantial influence the amount of a support obligation. Understanding how and when a court will impute income is a complex endeavor. This post is designed to give you a few basic pointers so that you can better understand the concept of imputing income. If you have questions about your specific case, it is important to speak with an experienced family law and divorce attorney.

Read the Virginia Code

In determining the amount of child support, a Virginia court is guided by child support guidelines. These guidelines are “presumptive” in that a judge shall presume, subject to rebuttal, that the guideline figure is the appropriate figure for support. However, Virginia Code Section 20-108.1 sets forth factors that a judge may consider in determining whether to deviate from the guidelines. Factor number three states as follows:

“Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party’s earning potential”

This language authorizes a Virginia court, in certain circumstances, to consider imputing income to a party based on that parties’ employment decisions. Accordingly, this language plays a critical role in each imputation issue.

Determine Whether Imputation is a Potential Issue

If a Virginia Circuit or Juvenile Court imputes income to a party, the court has essentially declared that the parent should be earning more than the parent is actually earning. These are some common examples of situations where this issue arises:

A parent has quit, or been fired from their job
A parent is working less than full-time hours
A parent has taken a pay decrease, or accepted a different job for less pay
A parent is not working, but is capable of working

Gather the Evidence

Proving that a parent is voluntarily unemployed or under-employed can be a difficult task. In many cases, it is advisable to gather evidence to demonstrate the person’s earning capacity. Some examples of relevant evidence may include past earnings (i.e. pay stubs, tax returns), documentation regarding termination of former employment (i.e. termination letter, employer disciplinary records), documentation regarding educational background, and medical records showing a capacity to maintain employment.

Consult with a Vocational Expert

A vocational expert may be a critical witness in your support case when imputation of income is an issue. A vocational expert can provide an opinion regarding the earning capacity of a parent, and can show evidence of employment opportunities. An opinion from such an expert can often become a vital piece of evidence that can sway a judge’s decision regarding whether or not to impute income.

If you have additional questions about imputation of income, child support laws, or any other family law or divorce issue, contact an experienced Virginia attorney at BoykoNapier. The trial lawyers at BoykoNapier represent clients in all manner of family law and divorce cases throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. Contact BoykoNapier at (804) 658-3418, or you may reach us via email.

Virginia DUI: Refusal and the Birchfield Opinion

October 22, 2016 By Marc Leave a Comment

empty road — Courtesy of SO JORD via flickr.com
license link

In Virginia, when a person is lawfully arrested on suspicion of driving under the influence (DUI/DWI), statutory language says the person has consented to submit to a breath or blood test to determine the alcohol and/or drug content of their blood. See Implied Consent – Va. Code 18.2-268.2. Both tests are somewhat self-explanatory: a breath test involves the suspect blowing into a “breathalyzer” machine which calculates the blood alcohol content (BAC); a blood test involves an authorized medical professional drawing blood from the suspect and submitting it to the Virginia Department of Forensics, where it is analyzed for BAC or drug content.

If a person unreasonably refuses to submit to the test, they can be charged with a separate offense commonly called a “Refusal”. See Refusal – Va. Code 18.2-268.3. Virginia’s Refusal statute was enacted to deter suspects from deciding not to comply with the tests. A first offense of refusing to submit to the test is a civil penalty, and a one-year license suspension is imposed if convicted; a second offense is a criminal charge.

This past June, the United States Supreme Court decided Birchfield v. North Dakota. In our view, the Court correctly determined that warrantless blood draws incident to DUI arrests are unconstitutional. The Court overturned a defendant’s criminal conviction for refusing to submit to a warrantless blood draw. In the same context, the Court found that warrantless breath tests are constitutional as the privacy implications are much lower than with the far more invasive blood draw.

So, how does Birchfield impact Virginia’s Refusal law? That is a difficult question to answer. Portions of the statute, standing alone, would theoretically be constitutional under Birchfield (i.e. a criminal penalty for refusing to submit to a breath test would be valid, as would a civil penalty for a first offense of refusing to submit to a warrantless blood test). However, the implementation of at least one portion would theoretically be unconstitutional (a criminal penalty for a second offense of refusing to submit to a warrantless blood test). Does that fact taint the entire statute itself?

Unfortunately, it may be a while before Virginia’s appellate courts have the opportunity to interpret Birchfield. Perhaps we will encounter a legislative amendment to the statute before that interpretation arrives.

If you have been charged with a DUI or a Refusal in Virginia, it is important to reach out to an experienced criminal defense attorney. The Virginia defense attorneys at BoykoNapier represent clients in all types of criminal and traffic offenses throughout the Richmond area, including Henrico, Chesterfield, Hanover and the surrounding localities. To speak with a criminal lawyer about your case, call BoykoNapier at (804) 658-3418, or you can contact us via email.

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: What Assets and Debts Are Divided?

October 19, 2015 By Marc Leave a Comment

Courtesy of Taber Andrew Bain via flickr.com license link — Courtesy of Taber Andrew Bain via flickr.com
license link

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.

Driving on a Suspended License – Virginia’s Vicious Cycle

May 12, 2015 By Marc Leave a Comment

ocean highway — Courtesy of Larry W. Lo via flickr.com
license link

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.

Child Support in Virginia: Understanding Shared Guidelines

February 18, 2015 By Marc Leave a Comment

boy at aquarium — Courtesy of U.S. Army via flickr.com
license link

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

Man with child — Courtesy of Esther Gibbons via flickr.com
license link

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

children and parents — Courtesy of Karsten Bitter via flickr.com
license link

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.

Reckless Driving in Virginia: A Few Things To Know

July 30, 2014 By Marc Leave a Comment

Virginia Highway — Courtesy of Nicholas A. Tonelli via flickr.com
license link

In Virginia, Reckless driving is a very common charge that often comes as a surprise to most of our clients. In light of the frequency of these charges, as well as the seriousness of the offense, take a minute to review some important information about Reckless Driving.

Reckless Driving is broadly defined by the Virginia Code

The Virginia Code defines reckless driving as “any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person”. Va. Code 46.2-852. As you can see, the language is broad enough to capture a wide variety of driving behaviors.

In addition to the broad “general” definition, there are additional statutes which specify certain driving behaviors as being reckless driving. For example, driving a vehicle with faulty brakes, passing a stopped school bus and failure to properly signal a turn are all traffic infractions that are declared reckless driving by statute.
Perhaps the most common situations (in the Richmond area at least) where Virginians are charged with reckless driving are in situations involving a motor vehicle accident and situations involving high rates of speed.

Don’t Go Over 80 mph!

Everyone should be aware that you may be charged with Reckless Driving by Speed if you are going over 80 mph, or if you are going more than 20 mph above the posted speed limit (i.e. 46 mph in a 25 mph zone). Even if the speed limit is 70 mph, if you are going 81 mph or more you can be charged with Reckless Driving.

Reckless Driving is a Class 1 Misdemeanor in Virginia

A Class 1 misdemeanor is the most serious misdemeanor offense in Virginia; a conviction carries up to 12 months in jail and up to a $2,500.00 fine. Here are the Misdemeanor punishment ranges in Virginia. To better understand the seriousness of a Class 1, consider that the following criminal offenses are also typically Class 1 misdemeanors: Assault and Battery, Petit Larceny, Possession of Marijuana, D.U.I. (Driving Under the Influence). Additionally, under certain circumstances your license may be suspended by the Court if you are convicted.

Speak to an Experienced Traffic Defense Lawyer

If you receive a reckless driving charge, it is important that you contact an experienced Virginia Traffic Defense attorney about your case. There are a variety of ways to avoid getting convicted as charged. An experienced attorney can help you understand the issues at hand and the defenses you may have, so that you can improve your chances of achieving a good outcome in your case.

The attorneys at BoykoNapier are experienced in all types of Traffic and Criminal 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.

Call: 804-658-3418