As our federal legislators struggle to address the mounting federal debt, family law practitioners in the Washington, D.C. Area are treading softly with diverging treatments of family debt in the District of Columbia, Maryland and Virginia.
The District of Columbia provides perhaps the clearest roadmap for dealing with debt in family law matters. The District’s equitable distribution statute explicitly authorizes the valuation or distribution of “all property and debt in a manner that is equitable, just and reasonable, after considering all relevant factors…” See DC Code § 16-910(b). Dealing with debt is further simplified by the District’s property dichotomy: it recognizes only separate and marital property.
The state of Maryland is quite different. Though case law broadly defines marital debt as debt incurred to acquire marital property and discusses using it to reduce the value of marital property for equitable distribution purposes, no express statutory authority exists to permit a court to allocate debt between the parties. See generally Schweizer v. Schweizer, 301 Md. 626; 484 A.2d 267 (1984). Instead, Maryland courts indirectly allocate debt under the State’s equitable distribution factors by considering “the value of all property interests of each party” and “the economic circumstances of each party at the time the award is made.” Md. Fam. Law Code § 8-205(b)(2) and (3).
In 2011, the Virginia General Assembly changed how the Commonwealth dealt with debt. One year prior, Gilliam v. McGrady, a 2010 Virginia Supreme Court case, briefly exempted debt from “typical” marital property presumptions (i.e. individual debts incurred during the marriage were presumed marital) and instead applied traditional guidelines that allocated the burden of proof (i.e. individual debts incurred during the marriage were presumed separate). 279 Va. 703, 691 S.E.2d 797 (2010). This framework, however, necessarily required family law attorneys to introduce and work through scads of individual charge card statements in an attempt to shift that burden. Thankfully, the General Assembly promptly responded to Gilliam by amending the equitable distribution statute in March of 2011 to include definitions of separate debt and marital debt, and clear presumptions regarding the treatment of same.
Jason A. Weis, Esquire – Curran Moher Weis P.C. – email@example.com – 10300 Eaton Place, Suite 520Fairfax, VA 22030 – 571-328-5020
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 Weis P.C. – firstname.lastname@example.org – 10300 Eaton Place, Suite 520, Fairfax, VA 22030 – 571-328-5020
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.