Virginia Family Law
A Blog by Jason A Weis, Esq.
Virginia & Maryland Family Law Attorney

Virginia Family Law – Frequently Asked Questions: More Common Questions


going in circles sign2 150x150 Virginia Family Law   Frequently Asked Questions:  More Common QuestionsI suspect my spouse is hiding assets. What can I do? 

In addition to using the discovery process to gather information from your spouse, your attorney can issue subpoenas and gather information directly from third-parties such as employers and financial institutions.  Additionally, investigators and experts may be employed to gather and analyze other information.  For example, forensic accountants and computer forensics experts are two common experts employed in divorce matters.

 

My circumstances have changed since my divorce was final.  What can I do about this?

The court usually retains jurisdiction over child support, custody and visitation orders even after the divorce is final.  Either spouse may petition the court to modify those orders at a later date by alleging that material change in circumstance has occurred and that the proposed modification would be in the child’s best interests.

My spouse has not been complying with the Court’s Order.  What can I do about this?

In many cases, a spouse can move to enforce a court order by filing a Petition for Rule to Show Cause.  Such petitions typically require the non-compliant spouse to appear before the Ccurt and demonstrate why he/she should not be held in contempt of court for failing to abide by the court’s order.  In many cases, if the non-complaint spouse is found in contempt, the spouse who filed the petition will be awarded his/her attorney’s fees.

My child wants to live with me, but currently lives with my spouse.  Will the court consider my child’s wishes in determining custody?

In Virginia, the “best interests of the child” factors include the reasonable preference of the child, assuming that child is of sufficient age, intellect and maturity to fairly assess what is in his/her best interests.  There is no specific age or criteria of maturity set forth by law.  Usually the court will be more receptive to children as they approach their teen years, but, depending on the facts, a
court may agree to hear from a younger child or refuse to consider the wishes of an older child.

I was granted joint legal and primary physical custody of our child.  I am interested in taking our child and moving out of the area. Can I do this?

Yes, but in most cases you will have to provide your spouse with at least thirty (30) days prior notice of your move.  If your spouse objects to you relocating with the child, a hearing may be held to determine whether the relocation would be in the child’s best interests.

Shortly after our divorce, my ex-wife married a wealthy man.  Can his assets be considered in the calculation of child support?

The income of a new spouse is generally not considered in the child support formula, but it may be relevant to both the child’s needs and your former spouse’s ability to meet her child-related expenses.

My former spouse has remarried and now has another family to support.  Can this impact the child support I am required to receive?

Yes.  If your former spouse has children with his/her new partner, the amount of your child’s support may be modified.

Can I throw my spouse out of the house?

Unless there has been violence or a serious threat of violence in the relationship, a judge may be hesitant to exclude either spouse from the home without a hearing.  After a hearing, however, the judge may order that one party have exclusive use and possession of the residence pending a final disposition of the property.

Can I just throw out my spouse’s stuff?

Yes, but it would not be wise.  You may be found liable for the cost of replacing those items.  Moreover, such behavior may motivate negative by your spouse, place you in a negative light in the judge’s eyes, and/or increase your attorney’s fees.

Can I open my spouse’s mail, including email?

No. If you receive any mail addressed solely to your spouse, it should be forwarded to him/her by you or through your attorney.  It is improper (and may be illegal) for you to open your spouse’s password protected email communications.

Jason A. Weis, Esquire – Curran|Moher P.C. – jweis@curranmoher.com – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020

 

Virginia Family Law – Frequently Asked Questions: Child Support


two young children 150x150 Virginia Family Law   Frequently Asked Questions: Child Supporttwo young children Virginia Family Law   Frequently Asked Questions: Child SupportContinuing in the series of frequently asked questions…

What are parents’ obligations to their children?

Every parent has the basic duty to provide his or her children with the necessities of life such as food, clothing and shelter.  The Commonwealth of Virginia does its part to ensure these necessities are provided by mandating that parents provide financial support for their children.  In Virginia, this mandate usually terminates when the child is emancipated (e.g. turns eighteen (18) and graduates high school or turns nineteen (19)), but it can extend beyond that point if the child is unable to support him or herself.

How is the amount of child support calculated?

Most, if not all, states have developed guidelines that help parties establish the appropriate amount of
child support.  Virginia, Maryland and the District of Columbia are no exception; each has its own child support guideline.  Though the guidelines may vary from state to state, all are based at least in part on the parents’ incomes and the expenses and/or needs of the children such as work-related childcare and health insurance costs.  Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent’s income that increases with the number of children being supported and/or number of days that parent spends with the children.  Many of these guidelines are also available on-line.  The purpose of such guidelines is to aid the judge and parties in determining the appropriate level of support.  Judges may deviate from the guidelines when there is good reason to do so.  If, for example, one child has higher than average medical expenses, support for that child may be higher. Or, if the judge determines that a parent is voluntarily earning less than he or she could, the judge may impute income to that parent and calculate support using what the parent is capable of earning.

What factors are generally considered in child support proceedings?

Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including:

  • The child’s standard of living before the parents’ separation or divorce;
  • The paying parent’s ability to pay;
  • Thecustodial parent’s needs and income; and
  • The needs of the child or children, including educational costs, daycare expenses and medical expenses (health insurance or special health care needs)

In Virginia, for example, the follow factors are considered in establishing support:

1. Actual monetary support for other family members or former family members;

2. Arrangements regarding custody of the children, including the cost of visitation travel;

3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the 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;

4. Debts of either party arising during the marriage for the benefit of the child;

5. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;

6. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

7. Any special needs of a child resulting from any physical, emotional, or medical condition;

8. Independent financial resources of the child or children;

9. Standard of living for the child or children established during the marriage;

10. Earning capacity, obligations, financial resources, and special needs of each parent;

11. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential

12. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;

13. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and

14. Such other factors as are necessary to consider the equities for the parents and children.

Once a court issues a child support order, can the amount of support be changed?

 Child support may be modified under certain circumstances, but only through a single method:  a formal amendment to the previous support order.  The simplest method is for parents to agree to a change and incorporate that change into a court order.  When there is no voluntary agreement, however, the party seeking the change must request a court hearing, where each party may present reasons supporting/opposing the modification.  In Virginia, for example, a party seeking to modify child support must demonstrate that a “material change in circumstances” has occurred and that a modification of support would be in the child’s best interest.  Common material changes in circumstances might include significant increases or decreases in a parent’s income, the cost of work-related childcare or medical insurance, the children’s needs, or number of days a parent spends with the children.

Jason A. Weis, Esquire – Curran|Moher P.C. – jweis@curranmoher.com – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020

Virginia Family Law – Property Settlement Agreements


pen signing document Virginia Family Law   Property Settlement Agreements Property Settlement Agreements (“PSA”), also called Separation Agreements, are typically omnibus, formal legal documents drawn to address the major tenants of an approaching divorce proceeding.  Ideally, these post-marital agreements, tackle all rights and obligations arising from the parties’ marriage to one another.  Those rights include, among other things, custody and visitation, child and spousal support and property division.   

 Married parties are free to contractually agree upon a resolution of their marital obligations at any time.  Their agreement need not be formal; a “back-of-the-napkin” agreement may prove just as enforceable as a professionally drafted agreement.  To be clear, however, PSAs are contracts and the same rules generally applicable to contracts apply to determine whether a PSA is valid.  In most cases, where an agreement is complete on its face and unambiguous in its terms, a court will uphold it unless fraud, duress or unconscionability exists.

The vast majority of divorce cases resolve with the signing of a PSA.  Why? 

  • The parties have the clearest sense of why their relationship ended and may best recognize how to serve not only their individual interests, but also the interests of their children.

 

  • The parties may appreciate how marital property was acquired or maintained and have equitable notions about how that property should be divided, notwithstanding what the law may provide. 

 

  • Compromise on both sides as directed by the parties (as opposed to a court) may yield an agreement both parties are more likely to honor.  Keep in mind that often the best agreements are those where neither party is particularly happy.

 

  • PSAs offer the prospect of a quick and cost-effective resolution to marital discord, particularly when compared with contested litigation.

 

  • PSAs can be incorporated into divorce decrees, which allows a court to enforce them by way of its contempt power.

 

  • PSAs allow the parties to reach agreements beyond what a court might be willing to address during litigation such as continuation of spousal and child support beyond statutory guidelines or inclusion of detailed visitation, communication and conduct guidelines. 

Though every agreement is separate and distinct, attorney written agreements often incorporate scads of boilerplate provisions that near-universally apply.  At Curran|Moher,P.C., our firm PSA language is quite lengthy; it is the product of continuous optimization and revision, made over the course of several decades of family law practice.  Over the weeks to come, I will address specific provisions that you might consider including in your PSA.  If you have questions about the drafting of a property settlement agreement, please feel free to drop me a line.

Jason A. Weis, Esquire – Curran|Moher P.C. – jweis@curranmoher.com – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020

Virginia Family Law: Divorce in the D.C. Metropolitan Area




funny couple disagreement Virginia Family Law:  Divorce in the D.C. Metropolitan Area Recently, I added the District of Columbia to Virginia and Maryland as locales where I am admitted to practice law.  In the D.C. Metropolitan Area, being barred in all three jurisdictions makes sense; while I am a native of Northern Virginia and my office is located in Fairfax, both Maryland and D.C. are less than 30 minutes away and I frequently receive calls from people who have family law issues touching all three locations.  Family laws are subject to the whims of local legislatures and thus, though they are often similar, they are certainly not identical across the three jurisdictions.  Some notable differences include:

 

·       In D.C. the age of majority for children is 21.  In both Virginia and Maryland the age of majority is 18;

 

·       In Maryland, the shared custody child support guideline takes effect when the non-primary custodian parent has the child for 128 days or more.  In Virginia, the shared custody guideline kicks in at 90 days or more.

 

·       Each state has its own child support guideline.  Maryland’s guideline was recently revised and, as a result, in most cases its the most generous;

 

·       In Virginia, alimony is terminable when the receiving spouse resides with a member of the opposite sex in a relationship analogous to marriage for a period in excess of 12 months.  Neither Maryland nor D.C. has such a statutory termination provision.

 

·       Both Virginia and D.C. have 12-month involuntary separation periods for divorce, but Maryland has a 24-month involuntary separation period;

 

·       Unlike Virginia and Maryland, in D.C. marital fault like adultery exists and can be considered, but it is not a ground for divorce; and

 

·       Unlike Virginia and Maryland, in D.C. property is categorized as either marital or non-marital.  There is no hybrid property in D.C.

 

Naturally, there are many, many more distinctions between the jurisdictions and, in certain cases, party agreements can render those distinctions meaningless.  If you have questions about the distinctions between family laws in Virginia, Maryland or the District of Columbia, feel free to drop me a line.

 

Jason A. Weis, Esquire – Curran|Moher P.C. – jweis@curranmoher.com – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020

Virginia Family Law: Health Insurance Costs & Divorce


            A recent study has concluded that if current health trends continue, more than half of all babies born in industrialized countries since the year 2000 will live to the age of 100.  As an example, in the United States life expectancy for kids born in 2010 is likely to rise to an incredible 104 years.  “I guess it is good news for individuals and a challenge for societies,” epidemiologist Kaere Christenson observed for ABCNews.com.  Data for the study was drawn from more than 30 countries and it clearly supported the notion that life expectancy has been on a steady rise; the odds of a person living past age 80 has doubled since 1950.  “If life expectancy were approaching a limit,” Christensen says, “some deceleration of progress would probably occur.” 

In the early 20th century, longevity likely rose due to reduction in infant mortality rates.  Since then and especially since the 1970’s the boost has likely come from medical advancements in treating the elderly.  People are now living longer, with fewer disabilities and in coming decades, medical advancements such as stem-cell therapy may postpone deaths from heart disease, cancer and other chronic illnesses.  “Societies with tens of millions of people in their 80’s and 90’s will face unprecedented demands on their healthcare and retirement systems, and new economic and social challenges, as older employees wait ever longer to retire,” Christensen says.  “On the other hand,” he points out, “I don’t hear any concerns among the elderly that they are living too long.”

            Health insurance and medical costs touch Virginia family law in a number of important ways.  First, the cost of health insurance is considered by the court in establishing the guideline amount of child support.  The Virginia Child Support Guideline takes into account the additional costs parents incur to provide medical insurance for their children.  Note, however, that the formula considers only the additional cost arising for the children and not the overall cost for a family plan covering parents and children alike.  Second, that guideline further provides that all unreimbursed medical or dental costs in excess of $250 per calendar year for each child are to be paid by each parent in proportion to their respective incomes.  Thus, clear record keeping can become quite important for the parent incurring the expense and seeking a reimbursement.  Finally, and perhaps most importantly, in nearly all cases once the divorce has been finalized, the spouse providing insurance for the family will be unable to maintain coverage for his/her former spouse, except through COBRA, which is often cost prohibitive.  As a temporary alternative to COBRA, I often recommend clients consider individual health insurance plans.  Ginger Gray of State Farm Insurance in Fairfax, Virginia – (703) 278-5440 and http://www.gingergray.com/ – has proven to be an excellent resource in that regard.  If either spouse is dependent on health insurance for serious (and expensive) medical treatment, timing your actions and the loss of health insurance benefits can be crucial.

            If you have questions about the interplay between your medical costs and your family law matter, feel free to drop me a line.

















About

My experience and background reflect the hallmarks of success one must demand of a lawyer in Northern Virginia's legal landscape.  As a native of this area, I have here focused my practice on providing sound and balanced representation to clients navigating the difficult legal waters of family law, including contested divorce, custody, visitation, spousal and child support, and equitable distribution.  More >>>

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Jason A. Weis, Esquire
Curran Moher, P.C.
3554 Chain Bridge Road, Suite 100
Fairfax, Virginia 22030

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Phone: (571) 328-5020

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Legal Disclaimer

Thank you for taking the time to read this blog. I hope you find the information here as enjoyable to read as I find to write. Please note that reading this blog does not create a legal relationship between you and Jason A. Weis, Esquire or any other attorney associated with familylawva.com. Moreover, all postings on this blog are merely attorneys' commentary on the state of family law in the Commonwealth of Virginia. THE POSTINGS ARE NOT LEGAL ADVICE – if you have a legal issue or question, I strongly encourage you to contact a lawyer. I would be pleased to refer you to someone if I am able.