Virginia Divorce & Custody Law

Resolving Child Custody Issues:

2013-05-23T08:42:12-07:00

The old Crosby, Stills, Nash & Young song “Teach Your Children Well” has a refrain that says “you, who are on the road, must have a code that you can live by…” Most of us have heard the song and find the message instructive. However, when we face the prospect of not being there every night to tuck our little ones into bed and read them their bedtime story because of divorce it creates a lot of emotional turmoil.

Most parents view their children as the most sacred asset(s) that they have in their life. When the bottom drops out of a marriage for any one of a multitude of reasons, they face the added prospect that they will lose the daily interaction that they have with their children.

There is a wealth of material that suggests that contested custody cases have an adverse impact upon a child’s emotional and intellectual development. When mom and dad are fencing and maneuvering to demonstrate that one is the better and preferred parent, this tension can translate to the children and some shortsighted parents endeavor to place their children’s torn loyalties right in the middle of this maelstrom.

The divorce attorneys at Odin, Feldman & Pittleman are experienced in a variety of approaches that are designed to minimize the adverse ramifications that the divorce can have upon children. There are a variety of options that are available to sift through these complex issues. They range from court ordered mediation, to alternate dispute resolution, to referral to neutral professionals that have experience and insight in preserving the dignity of the family structure even when the parties are destined to live separate and apart.

Judges consistently urge the domestic bar to search for solutions short of prolonged hearings that accentuate personal shortcomings of the adverse party. Oftentimes when these shortcomings are accentuated during the course of a lengthy trial, they portend future difficulties long after the hearing date. There are a lot of kids that are the product of divorced parents who go on to happy and productive lives because their parents in conjunction with their attorney focused upon the longterm goal and sought a creative solution to resolve the issues.

Listen to Me on the Radio Demystifying the Divorce Process in Virginia:

2013-05-21T08:13:22-07:00

On May 18^th, I hosted “Power of Attorney,” a 30-minute educational program on 1500 AM focused on legal developments effecting individuals and businesses. I demystified the process of filing a divorce case in Virginia, including the jurisdiction, mechanics and procedures. What are the “fault” and “no-fault” grounds needed to obtain a divorce? Can you live separate and apart in the same house? Must both spouses be residents of Virginia? All of these questions and more are answered. In the second half of the show, you won’t want to miss my interview of Maryland attorney Zhia Shepardson as she discusses her role as a “Best Interests Attorney” representing children (not the parents) in complex custody litigation. Virginia does not appoint BIAs in complex custody cases, but rather appoints a Guardian ad Litem, which has a similar but slightly different role than a BIA.

Here is a link where you can listen to the show: http://www.federalnewsradio.com/?sid=&nid=744

Do you Need a Pre-Nup?

2013-05-21T06:31:37-07:00

While many couples are envisioning their wedding day and are busy with preparations, making financial plans may be overlooked during this period of time. Obviously, most people do not go into a marriage expecting it to fail, but unfortunately, about one-half of all marriages end in divorce. One of the leading causes of marital problems is financial in nature. Fortunately, there is much you can do now and throughout your marriage to ensure that finances do not destroy your union through the use of a prenuptial agreement, generally now called a Premarital Agreement.

Premarital agreements are used when prospective spouses desire to clarify, modify or relinquish certain marital rights to property and support. Some of the reasons for entering into such an agreement are as follows:

Protecting separate property upon divorce or death;
Protecting claims for spousal support;
Protecting claims for property distribution upon divorce;
Protecting claims upon death and providing for children from prior marriages.

While many parties enter marriage with little assets and liabilities, and therefore do not need the protection of a premarital agreement, more and more people are marrying at an older age or marrying again. Therefore, they will want to protect certain assets that they have acquired. Virginia has adopted the Uniform Premarital Agreement Act known as the Virginia Premarital Agreement Act which allows parties to enter into agreement prior to their marriage to determine certain or all financial aspects during their marriage.

It is best to have that in-depth discussion about finances and whether or not a premarital agreement is warranted prior to your marriage.

Tune In To My Radio Show:

2013-05-20T07:35:42-07:00

Tune in this Saturday, May 25, 2013 at 10:00 a.m. to 1500 AM to listen to me host “Power of Attorney”, a 30 minute educational program focused on legal developments effecting individuals and businesses. This week I discuss all things child support. Are bonuses and commissions included in a parent’s “gross income?” How is work-related child care divided? Is my husband obligated to pay for my child’s extracurricular activities? All of these questions and more will be answered. In the second half of the show, you won’t want to miss my interview of Maryland attorney Donna Rismiller of the Rismiller Law Group as she discusses the very serious issue of domestic violence and the rights and remedies of a battered spouse.

Tune In To My Radio Show:

2013-05-15T06:47:43-07:00

Tune in this Saturday, May 18, 2013 at 10:00 a.m. to 1500 AM to listen to me host “Power of Attorney”, a 30 minute educational program focused on legal developments effecting individuals and businesses. This week I demystify the process of filing a divorce case in Virginia, including the jurisdiction, mechanics and procedures. What are the “fault” and “no-fault” grounds needed to obtain a divorce? Can you live separate and apart in the same house? Must both spouses be residents of Virginia? All of these questions and more will be answered. In the second half of the show, you won’t want to miss my interview of Maryland attorney Zhia Shepardson of the Rismiller Law Group as she discusses her role as a “Best Interests Attorney” representing children (not the parents) in complex custody litigation.

It is Now Easier to Prove Adultery in Divorce Cases:

2013-05-09T13:28:00-07:00

Adultery is still a crime in Virginia. Thus, a cheating spouse can assert his/her rights against self-incrimination (pursuant to the 5^th Amendment of the US Constitution) and refuse to answer questions about the adultery and refuse to disclose the identity of his/her paramour. But, if the innocent spouse knows the identity of the paramour and issues a subpoena to the paramour for a deposition or trial, can the paramour assert his/her 5^th Amendment rights and refuse to admit to the adulterous relationship? If the paramour also happens to be married, then he/she can assert 5^th Amendment privileges because he/she is also committing adultery. But, if the paramour is single, it seems that he/she should not be able to plead the 5^th, because he/she has not committed a crime. For years paramours, at the direction of their own attorneys, have been pleading the 5^thbased upon Virginia’s anti-sodomy statute. Virginia Code Section 18.2-361 made both oral and anal sex illegal, even if occurring between two consenting adults. Thus, a non-married paramour could asserts his/her 5^thAmendment rights against self-incrimination if oral or anal intercourse had occurred.

In 2013 the federal 4^th Circuit Court of Appeals overturned Virginia’s anti-sodomy law, declaring it unconstitutional in light of a 2003 U.S. Supreme Court decision invalidating state laws that make sexual activity between consenting adults crimes. This is an extremely important new development for divorce law practitioners. Thus, it now appears that adultery will be easier to prove if the paramour is single, as he/she should not be allowed to assert 5^thAmendment privileges.

To Collaborate or Not to Collaborate, That is the Question:

2013-05-07T13:14:56-07:00

When I took the Collaborative practice training in 2009, the concept of collaborative practice seemed to still be a fairly new phenomenon in Northern Virginia; although better established and more frequently used on the Maryland side of the beltway. When the parties consider collaborative practice as opposed to litigation, or even mediation; what are they agreeing to and why would they agree to use the collaborative process?

For starters, the parties agree not to use the same counsel in litigation if the collaborative case fails. This single prerequisite to collaborative practice has stopped some parties from considering it any further as a means of conflict resolution. However, it has not been my experience that a collaborative case, once started, has failed because of any impasse in the process or resolving the parties differences in an amicable manner. I am sure that there are cases out there where the collaborative process has broken down because one of the parties failed to fully cooperate, failed to fully disclose assets or otherwise acted in bad faith; I just haven't seen any of that.

What I can tell you is that the parties agreeing to employ collaborative practice as an alternative to litigation are highly motivated and desire to avoid costly and protracted litigation. They are equally interested in preserving their mutual respect for each other. When there are children, the parties share the additional motivation of trying to maintain and preserve (as nearly as possible), a harmonious relationship between them in the best interests of their children and to protect their children from the damage that an all-out war of attrition can cause on the children and the parties.

So, what does happen in collaborative practice?

First, the parties sign a Collaborative Participation Agreement which sets out that they will negotiate in good faith, lists who is involved and what is expected of all signatories, including counsel to the agreement.

Second, they agree to voluntary self-disclosure of all information that is relevant to being able to make an intelligent decision about finances, support, division of assets and parenting of their children. This is not so unusual, even in the litigation mode. For example, the Commonwealth of Massachusetts requires voluntary self-disclosure of most of the documents otherwise commonly demanded in discovery at the start of a divorce case.

Third, and as mentioned above, the parties agree to negotiate in good faith.

Fourth, the parties each must hire counsel trained in collaborative practice. This applies to coaches and the financial neutral when any of these additional players are involved.

Fifth, the parties may or may not choose to employ coaches for either or both parties and a financial neutral.

Sixth, and the final requisite, the parties agree that they may employ additional experts as needed. For example, a business valuator.

If I had to list the one greatest benefit of collaborative practice, besides less stress for the attorneys, is the benefit that a financial neutral brings to the table. The financial neutral does most, if not all, of the heavy lifting in analyzing and categorizing the parties assets, helping to classify assets for distribution between the parties and exploring options with the parties and counsel in how to equitably divide the parties' assets with the parties leading the discussion in putting up options that they believe warrant consideration.

So, how to decide whether to collaborate or not? The collaborative process is probably not appropriate in cases where there was domestic violence or abuse in the marriage or where one of the parties will not amicably attempt to resolve conflict. Mutual trust and respect are essential ingredients of the collaborative process. It is, on the other hand, appropriate regardless of income and value of assets where the parties do desire to self-direct the outcome and manage the process at their own pace. The parties in the collaborative process can have very creative outcomes not otherwise obtainable in litigation.

Dealing with International Assets and International Issues:

2013-05-06T13:51:08-07:00

The Washington Metropolitan area is a diverse international community. Oftentimes divorce cases involve disposition of assets located throughout the world as well as interpretation of contracts and agreements that were entered into in foreign jurisdictions. It is important to associate with local counsel in the jurisdiction where a foreign asset is located or a foreign agreement was made. You don’t want to put yourself in a position where you reach an agreement only to find out later that the agreement is not something that will be enforced in a foreign jurisdiction or is based on an improper interpretation of a foreign contract or agreement. There are organizations of international family law attorneys that have expertise throughout the world. We are members of a such an international organization and oftentimes look to the professionals in different international jurisdictions to help protect the interests of our clients on international matters.

GPS Tracking Devices To Prove Adultery in Divorce Cases:

2013-05-02T10:56:55-07:00

When a spouse suspects that his/her spouse is having an affair, it is important to obtain proof of the affair for use in an eventual divorce case. Sometimes a spouse will hire a private investigator, who might install a GPS tracking device on the other spouse’s car. Other times the spouse will install a tracking device, or will hide his/her iPhone (which has a built-in GPS device) in the other car. Currently, the issue of whether or not use of such a device is legal turns on the issue of how the car is titled. However, the Virginia legislature has amended the law and, commencing on July 1, 2013, it will be illegal and a Class 3 Misdemeanor for a spouse to install, or have someone else install, a GPS tracking device. The new statute is Code Section 18.2-60.5. However, it is important to note that the statute makes a specific exception for registered private investigators. Thus, it will be legal to hire a private investigator and have him/her install a GPS tracking device in the other spouse’s car.

Modifying Child Support:

2013-04-29T09:58:45-07:00

The State of Virginia believes it is the child’s right to receive support from both parents. Once a child support determination is made pursuant to Virginia Code Sections 20-108.1 and 20-108.2, the any parent who wants to modify or change child support has a 2-step burden to meet.

First, the parent who wishes to change child support must prove to the court that there has been a material change in circumstances. To qualify as a material change of circumstances, one could prove a significant reduction in income through no fault of the moving party (i.e.: income has changed 15% or more), the custodial parent has moved causing traveling expenses, the child no longer needs daycare, etc.

Once the court has found a material change, the parent seeking the change must prove that the material change warrants or justifies the change the moving parent is seeking. For example, If the Father’s income has gone up by more than 20%, and the mother’s income has gone up by 15%, those material changes in circumstance would not justify a reduction in child support. If the moving party is asking to reduce child support, the moving party must demonstrate to the court that he or she can no longer afford the child support currently ordered.

Proving the material change is the easy step. Proving through evidence that one cannot afford the support currently ordered and that the material changes justify a reduction in child support is more challenging.