What happens to your home when you get divorced in Virginia? Notwithstanding the current real estate market, for many couples going through a divorce, the home they purchased during their marriage is still their largest asset. Broadly speaking, dealing with that home during a divorce is relatively straightforward: one party will keep the home or both parties will agree to sell it.
Selling the home presents all of the typical challenges associated with that task coupled with the complications of a spouse who may less than keen on cooperating. When will the home be listed and who will list it? What will be the reasonable sales price? How aggressively will it be marketed and what repairs will be necessary? And, perhaps most importantly, how will the proceeds of the sale to be divided between the parties? A well written property settlement agreement will choreograph these aspects of the sale and many, many others.
One party keeping the home typically involves a refinance. At refinance, the party keeping the home obtains a signed deed from the other, thereby consolidating title ownership of the property. In exchange for that deed, the party leaving the home is paid a share of the equity existing in the home. Like more traditional refinances, the party keeping the home must qualify for refinance by, among other things, demonstrating sufficient credit, income and ability to maintain the mortgage after divorce. Assets or streams of income (such as alimony) obtained during the divorce may assist in that regard.
If you have questions about how the Court will treat your home or how the sale or refinance can be properly structured for purposes of divorce, please feel free to drop me a line. In my next post, I will discuss two of the more common methods used by courts to distribute equity in a property where one of the parties has made a significant, separate contribution to the property such as a separate down-payment.
Jason A. Weis, Esquire – Curran, Moher Weis P.C. – email@example.com – 10300 Eaton Place, Suite 520, Fairfax, VA 22030 – 571-328-5020.
Long, long ago (okay, back in 1941), the Virginia Supreme Court looked at the issue of “who gets the ring” and found that a husband could recover the value of his engagement ring if his soon-to-be wife broke off the parties’ engagement.
“[I]f an intended husband make a present, after the treaty of marriage had been negotiated, to his intended wife, and the inducement for the gift is the fact of her promise to marry him, if she break off the marriage, he may recover from her the value of such present…”
This case (Pretlow v. Pretlow) espouses the “conditional gift” theory. That is, the engagement ring is a gift conditioned on a marriage actually taking place. If the condition is not met – if the marriage does not occur – the gift is forfeited and the ring must be returned. Many states, including Maryland, view engagement rings as conditional gifts.
Virginia, of course, must be different. In 1968, the Virginia General Assembly enacted Virginia Code § 8.01-220, which prevents individuals from suing each other for “alienation of affection” and “breach of a promise to marry.” Subsequently, several Virginia circuit courts (including one as recently as 2006) have found that because a husband cannot sue for breach of a promise to marry, he similarly cannot sue for damages relating to that breach, including the value of the engagement ring.
Though in 1999 the Fairfax County Circuit Court ordered an engagement ring be returned where it was “subject to an unusual conditional gift in that the wife received it not on the condition of marriage but upon promise to return it in the event of separation,” the weight of current authority suggests that absent some other condition, promise or agreement, an engagement ring is an unconditional gift. Once given, it isn’t coming back (by court order).
Notwithstanding the law, there are often good and fair reasons for returning the “3-month’s salary” ring and many of my clients find their rings either returned or preserved for their children.
If you’ve got questions about the information above, please feel free to drop me a line. Jason A. Weis, Esquire – Curran Moher Weis P.C. – firstname.lastname@example.org – 10300 Eaton Place, Suite 520, Fairfax, VA 22030 – 571-328-5020.
Sex, Sex & More Sex in Marriage. How’s that for a title to a blog post? I am a “red-blooded” American man who enjoys sex. In fact, I enjoy it quite a bit. Lately, however, I’ve wondered whether sex has been blown a bit out of proportion.
It’s becoming increasingly difficult to live in today’s world without being bombarded by sex. It’s everywhere. Open a magazine and count the number of sexually suggestive images you see. You’ll find them, not only in articles about sex, relationships, dating and such, but also in advertisements for everything from high fashion to vacuum cleaners. Turn on a radio and count the seconds until the DJ offers some sexual innuendo or plays a song with overt sexual references. Turn on a television (almost any channel) or search the web (almost any search) and you’ll quickly find your way to attractive people doing sexually suggestive things. Perhaps more so than any other time in our history, sex assails us. Sex sells.
How does this sexual onslaught impact marriage and family law? Who knows? I have more family law clients coming in with issues with relating to sex. Of course adultery is a common issue for every divorce lawyer, but more and more I get questions like:
“How often should I be having sex?”
“Can anything be done if sex with my spouse isn’t good?”
“What if my spouse wants unusual or uncomfortable sex?”
In my experience as a divorce lawyer and after meeting with many, many unhappy spouses, here are two takeaways relating to sex:
1) Neither marriage nor sex is what you see on television. It’s a simple, but important point. Don’t compare your marriage or your sex life to what you see on television or read about in magazines. With due respect, you’re not as good-looking, wealthy or well-adjusted as the fictional characters of your favorite show. Surprise: the actors are acting. They get paid to work out and they wear lots of make-up. The things they say are perfect because both sides of their conversations are scripted. The sex they are pretending to have is marvelous and yours would be too if a 20-person crew worked for hours to get the lighting, candles, breeze, music, rose-petals and camera angles just right. They also do multiple takes and a lot of editing. Your marriage isn’t broken if you’re not having “movie-star” sex.
2) Sex is pleasurable, but so are many other things. How about your favorite home-cooked meal coupled with your favorite drink? How about making a bunch of money? There is pleasure in coming home to a clean house, having a good conversation, and just being with someone who knows you really, really well. There is pleasure in working out, challenging yourself at work and/or accomplishing things with your children. Give appropriate weight to all of the things that make you happy. Too often divorce clients come in focused only on sex; they are too eager to cast off their marriage for the prospect of mind-altering sex every night. Trading all of the comforts and benefits of your current marriage for a more agile sex partner may not be a trade you want to make.
If you’ve got questions about the information above, please feel free to drop me a line. Jason A. Weis, Esquire – Curran Moher Weis P.C. – email@example.com – 10300 Eaton Place, Suite 520, Fairfax, VA 22030 – 571-328-5020.
Internet, Email, Text Messages, and Divorce in Virginia. Ah, the power of the inter-webs. Our “modern era” has created a host of interesting and unique issues for both couples going through divorce and the attorneys who represent them. Can I read my husband emails? Well, maybe. It may depend upon how you accessed them. Can my attorney subpoena my wife’s text messages? Sure, but your attorney is likely to receive only the dates and times of the texts, not the messages themselves. Screen shots of the texts might suffice. Can my attorney recover deleted emails or computer files? Perhaps, but be prepared to pay a computer forensics expert to take the computer apart. What about what my spouse posted on Facebook or tweeted on Twitter? What about websites my husband visits late at night? Is it okay to cheat if I use a service like www.ashleymadison.com? Must I report my cheating spouse on www.cheaterville.com? You see where this is going.
Save the last two questions, which frankly are silly, most of these topics require a detailed discussion between client and attorney. In a growing number of my cases, some of the most useful and interesting materials come in the form of emails, text messages and camera-phone photographs. Whether and how you use these materials can play an important role in shaping the landscape of your family law matter.
“Thank You, May I Have Another?”
David Barash of the Los Angeles Times recently commented, “[r]ight wing pro-family advocates are correct, monogamy is definitely under siege.” But, he cautions his readers not to “blame radical feminists, gays, or godless communists.” “The culprit is our own biology.” Is adultery natural? Researchers of animal behavior have long understood that “monogamy is uncommon in the natural world,” and a growing body of research indicates that “Homo Sapiens carry all the evolutionary stigmata of a mildly polygamous mammal.” Before legions of lovers cheer “I told you so,” however, they should keep in mind that “natural isn’t necessarily good.” [Think tsunamis or testicular cancer.] The point is, some of the most satisfying human accomplishments, from mastering a musical instrument to scaling a mountain, don’t come naturally, but require dedication and hard work. Barash concludes, “[a] case can be made, in fact, that people are being maximally human when they do things that contradict their biology.” For its part, among other things, monogamy can foster an ever-deepening intimacy between partners and stabilize a family. “To be sure, monogamy isn’t easy; nor is it for everyone. But anyone who claims that he or she isn’t cut out for monogamy misses the point. No one is.”
Lest you forget, monogamy is an important part of marriage and, though there are certain defenses to a claim of adultery, “it just feels natural” is not among them. Adultery’s position atop the list of causes for fault-based divorces is not likely in jeopardy. As a divorce lawyer, I frequently meet with clients – both men and women – who have been unfaithful or believe their spouse has been unfaithful. If you would like to learn more about how the issue of adultery may inform your divorce proceeding, please feel free to give me a call.
It was big news when the national unemployment rate topped 10 percent, wrote David Paul Kuhn of The Wall Street Journal. What you may not realize, however, is that “male workers crossed this same threshold six months earlier,” with far less fanfare; the unemployment rate for men now stands at 11.4 percent. Never before has a modern-day U.S. recession “fallen more disproportionately on one gender.” This imbalance “is fundamentally a product of our times,” because some of the hardest hit corners of the economy, such as manufacturing and construction are “overwhelmingly male sectors.”
Nevertheless, the plight of jobless males has drawn only “limited attention” from Washington. In fact, stimulus dollars “were disproportionately away” from major new infrastructure spending, “in part, because women’s groups such as the National Organization for Women lobbied hard against the president’s proposed ‘shovel ready’ stimulus program.” As a result, nearly half of the jobs created by the stimulus spending went to women, which is “about twice women’s estimated job losses.” Men don’t need to start seeing themselves as victims, but they might soon consider demanding that a new jobs bill be structured “to address the wave of male unemployment.”
Paul Krugman of The New York Times adds an equally sunny statistic: “six times as many Americans are seeking work as there are job openings,” and the average time spent looking for work – more than six months – is the longest since the 1930’s.
This article raises interesting issues of spousal support and income imputation in Virginia divorce. What happens when one spouse loses his or her job during the divorce? What is income imputation? Imputation is the notion that a court may calculate support using the income amount you should be earning as opposed to the income you are actually earning. Support is driven, in part, by income; each party is obligated to earn as much as he or she can. A party cannot voluntarily reduce his or her income, but what does a court do with a party who has lost his or her job? The Antonelli case discusses this issue:
Any career change, any investment, is by nature a voluntary act. We do not perceive the law defining obligations of child support to be intended to frustrate ambition or enterprise. Therefore, we construe the term “voluntary act” to describe a willful act done for the purpose of frustrating the feasibility or enforceability of the support obligation. Thus, an applicant who shows a reduced ability to satisfy his obligation, which is not due to his wrongdoing, his neglect of his affairs, or his intentional diminution of his financial capacity other than in connection with a bona fide and reasonable business undertaking, is entitled to have that reduction considered along with the other usual factors, including his general earning capability, in determining his child support obligation.
Thus, when a party has recently lost his/her employment, the court will often look for wrongdoing or simple neglect. Where that party’s income has been reduced due to being fired for stealing, a court will likely impute to that party the income he or she would have earned prior to being fired. This concept creates a powerful disincentive for workplace tomfoolery. But, where a party has made a good faith change in employment with the hope of improving future income, a court will be far less likely to impute income. As an interesting corollary to this idea, high-earners should tread carefully when considering taking lower paying employment during divorce.
If you would like more information on these topics or tips on what to do if you have lost your job while contemplating divorce, feel free to drop me a line.
“We’ve come a long way, baby,” said Tara Parker Pope in The New York Times. Nearly half a century since feminist pioneer Betty Frieden urged women to leave the home and pursue careers, full equality, it would seem, is finally within reach. A new analysis of census data by the Pew Research Center shows that women are now the main breadwinners in 22% of U.S. households, up from 7% in 1970, and that in nearly a third of marriages the wife is better educated than the husband. A separate study nearly mirrors those results. As reported on MSNMC.com, nearly 26% of wives now earn more than their husbands in households where both spouses work, up from 17.8% two decades ago. Among all married couples, 33.5% percent of the women make more than their husbands. Traditionalists have long predicted that the crumbling of old-fashioned gender roles would lead to the breakdown of the American family, but the opposite appears to be true. “The more economic independence and education a woman gains,” the Pew study found, “the more likely she is to stay married.”
Feminists can crow all they want, said Maggie Gallagher in the New York Post, but the real story here is “not that women are doing well, but that boys are doing badly.” The driving force behind the so-called “rise of the wives” is that this nation’s feminist-dominated education system is biased against boys and their different learning styles, leaving young men more prone to drop out of high school and forgo college, and thus less prepared to the job market. In the current recession, fully three-quarters of the jobs lost were lost by men, and today, only 40 percent of college graduates are male. These are truly alarming statistics, but in our politically correct culture, “every sign that boys or men are hurting gets turned around into a ‘happy news’ story of female success.”
“Are you kidding,” said Paula Dvorak in The Washington Post. “Things are sweeter than ever” for the average U.S. husband. Men can receive spousal support in Virginia divorce. Married American men are working less, living longer, and discovering that there are worse things in the world than having an ambitious spouse with a high-paying job. And they still do less around the house than women. For women like me, though, said Sandra Tsing Log in the New York Times, our new, post-feminist reality is a mixed blessing. Yes, I make more than the man I share my life with, and yes we share the housework after our long, exhausting workdays. But, no one meets us at the door with our slippers and a tray of martinis, ready to offer us “uncritical emotional support” while we both complaint about our day. What both I and my partner need is a wife – a role that’s “fast disappearing.” We’re all breadwinners now.
This article reminded me of an encounter I recently had during a trip to Florida. While perusing a flea market with my family, I happened upon a table of spirited, though elderly, rebel rousers distributing pamphlets and proclaiming alimony as akin to involuntary servitude. As a divorce attorney, I found these alimony protesters particularly interesting. I appreciated their half-baked constitutional arguments and enjoyed the fervor with which they vented about having to work into their old ages to support their former wives. What I probably enjoyed most, though, was the gentleman who informed me that women pay alimony too – “some women even earn more than men.” It was his pause for my reaction that I liked. The stare. The, “you heard me right son, they make more than us now.”
If you have questions about spousal support in Virginia, please feel free to drop me a line.
Scientists at the University of California have recently determined that dating an attractive partner makes you more appealing to possible mates. You would be “secondhand hot.” These scientists asked volunteers to rate the attractiveness of men and women they viewed in photos. The volunteers then looked at different photos of the same people, this time showing them with companions. Both men and women found individuals more desirable when they were paired with attractive companions. By tracking eye movements, the researchers found that the volunteers, “all spent a significant amount of time looking at the mate’s partner,” evolutionary biologist Jessica Yorzinski tells LiveScience.com. Although the study aimed to probe the evolutionary factors in mate choice, it suggests dating strategies for singles. “Perhaps if woman doing online dating websites are pictured with attractive boyfriends,” says Yorzinski, “that would help them get more responses to their ads.”
Social networking and Virginia Divorce are increasingly walking hand-in-hand. Profiles on social networking sites like Facebook or MySpace provide interesting insights into the health of a marriage. More than the poster’s self-identification as “married” or “single,” often posters add date-stamped photographs and/or comments about themselves and their most recent activities. Additionally, posters can be “tagged” in photographs on others’ sites and commented about. The reliability of information gathered on the internet and admissibility of such information in a court-proceeding will depend on a number of factors.
If you would like to discuss information you may have come across, feel free to drop me a line.
Some Keys to Minimizing Your Attorney’s Fees
Surely you’ve heard the phrase, “You can catch more flies with honey.” Well, a recent study confirmed something many successful negotiators already know: flattery, even when feigned, has value. For example, tell someone you like the way they dress or think they are smart, and they are more likely to look upon you favorably, even if they know you are being insincere. This approach, reports Scientific American, works because it feeds into the “above average effect,” a view held by most people that they are above average (even though it is statistically impossible).
Marketers have also long embraced this practice. In a different study, researchers in Hong Kong asked subjects to rate the appeal of a hypothetical new department store after looking at a promotional advertisement that directly praised the reader’s fashion sense. Even after acknowledging the flattery’s transparency, subjects rated the store more positively and said they were more likely to shop there. If someone tells us we look good, research says, we believe it, even if the smooth talker’s motivation is clear.
How Much Will My Virginia Divorce Cost? Many elements impact the costs of a divorce. In nearly all cases, divorce attorneys bill by the hour. In Northern Virginia, the typical hourly rate for an experienced divorce attorney is between $250 and $650. The fewer issues on your proverbial “divorce table,” the fewer hours your attorney will require to assist you and the lower your costs will be. Choose carefully the issues you intend to “take to the mat;” consider when to use your attorney and when to simply play nice. Pause and reflect for a moment before ending communications to your spouse with a pejorative comment or insult. Reasonable disagreements arise during every divorce and attorneys can play an integral role in presenting you position to a judge for determination. But, many issues can be resolved quickly, cheaply and (somewhat) painlessly by simply being cordial.
Kindness, however, has its limits. When your issues have been suitably limited, take a moment to examine your retainer agreement. As a client (or potential client), it is unquestionably worth your time to read your retainer agreement and understand how you will be billed. For example, many attorneys have minimum time charges for certain tasks like travelling to court, drafting pleadings, leaving voicemails and such. If your attorney bills in .2/hour increments, it behooves you to stockpile your daily divorce issues into a single email or telephone call as opposed to writing him/her five separate emails or calling many, many times. Do your own “grunt work” like typing and copying. Give your attorney comments in “soft form” so he/she can cut and paste them as appropriate.
There are many other ways to minimize your attorney’s fees and costs associated with divorce. If you have questions or comments about this topic, feel free to drop me a line.
ABCnews.com has reported an interesting study of high school and college students, built upon data from tens of thousands of psychological surveys in use since 1938, that concludes depression, anxiety and other mental-health issues are far more prevalent among today’s youth than they were during the Great Depression. In fact, five times as many students in 2007 reported signs of mental illness than did those in 1938. Some researchers speculate that today’s emphasis on wealth and appearance places an overwhelming pressure on young adults to be “hot” and “live large,” while others propose overprotective parenting keeps kids from developing independence and coping skills. Jean Twenge, psychologist and lead author of the study, hypothesizes that a focus on material things has replaced a focus on relationships.
Adding to a young child’s burden by requiring him/her to testify in a contested divorce proceeding is not a matter to lightly undertaken by a parent. Virginia Code Section 20-107.2(7) requires, as a factor for determining the best interests of a child, that “the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference…” be considered. There is no precise age at which a child is deemed to have reached the “age of discretion;” the statute effectively provides a sliding scale whereby a judge can exercise discretion in determining whether a child is competent to testify and how much weight, if any, the testimony should be given.
As a general rule, the older a child gets, the more likely it is that the child’s preference will play a significant role. Of course, there are always exceptions. For example, teenagers are typically considered to have reached the “age of discretion,” but if a teenager’s conduct reflects a lack of maturity and understanding (e.g. the teenage has legal or academic problems, or prefers to reside with one parent merely because that parent is less strict) the testimony may be heard, but given little weight. As another example, children below the age of 12 are typically not considered to have reached the age of discretion, but reported cases exist finding particularly mature and experienced children as young as 7 and 8 years old competent to testify.
There are several alternative mechanisms by which a child’s preference may be communicated to the Court without his/her direct testimony. Moreover, there are avenues for presenting a child’s preference to a Court that minimize his/her stress level. If you have questions about this topic or in any other regard, feel free to drop me a line.
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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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.