How to Get a Divorce in Virginia

The 6 Steps To Prepare Yourself For a Divorce

1. Don’t wait to protect yourself! Know your rights early.

Clients often come to see me in the early stages of separation and divorce. Sometimes a client is just looking to know “what if” scenarios if one of them decides to divorce.  These clients almost always leave saying something like “wow, I never knew that – thank goodness I met with you,” or “I will definitely take the steps you recommended if we decide to separate.”  I have also had clients come to me months or even a year or more after they or their spouse made the decision to divorce.  Sometimes that delay has put them in a bad position as they have made decisions I would have cautioned them against had they met with me sooner.  If you are considering separation or divorce (or you think your spouse is), speak with an experienced attorney as soon as you can.  There are almost certainly things you can do to put yourself in a better situation when it comes time to divorce.  These may include dividing bank accounts, opening new bank accounts, collecting information and documentation on your spouse’s financial and personal situation, and a whole host of other things.

2. Be prepared when you meet with an attorney.

There are several things you can do to maximize your first meeting with an attorney:

• Create a list or spreadsheet of the assets and debts you know exist. Sometimes people don’t have all this information and that’s fine, but having a list of what you do know about is often very helpful.  Be sure to let your attorney know if you believe your spouse may be hiding assets, or has been keeping you in the dark about what they have;
• Prepare a list of questions you have. The attorney you meet with should be able to answer your questions at the initial consultation, or if a question cannot be answered at that time, explain why that is;
• Determine what your priorities are and communicate them. Also, give thought to what you would like your post-divorce life to look like.  Do you intend to relocate?  Do you see yourself as being the primarily caretaker of the children, or more of a shared parenting arrangement?  Do you want to stay in the marital residence or have it sold?  Do you expect to retire soon, or make an employment change, like starting a business?

3. Live separately.

In most circumstances you and your spouse must live separately for one year before either of you can apply to the court for a divorce.  Separation generally means one of two things: 1) that someone moves out of a shared residence and either or both parties have the intent to pursue a divorce; or 2) the parties live separately in the same residence and either or both parties have the intent to pursue a divorce.  Moving out is a clear demarcation for separation, but living separately in the same residence can be more challenging.  If you are considering living separately under the same roof, you can see our checklist of things you should be doing (if possible) to ensure that you truly are living separately here: https://www.curranmoher.com/blog/2017/02/02/in-house-separation-virginia/

4. Get important things out of the house.

If there are any valuables or sentimental items that you would be very upset to lose, it is generally a good idea to get them out of the house.  Store them at a trusted friend or relative’s house, or in a storage facility.  You may also want to download copies of family photos and videos onto a cloud service or external hard drive.

5. Know that the date of separation is the date of financial separation and act accordingly.

In Virginia, the date of separation is the date of financial separation.  Everything that is earned before the date of separation is presumed to marital property.  Every debt that is incurred before the date of separation is presumed to be a marital debt.  Conversely, after the date of separation all income earned is presumed to be the separate property of the party who earned it, and all debt is presumed to be the separate debt of the party who incurred it.  What does this mean in the real world?  It means that in most cases, it will be a good idea for you to open new credit cards and bank accounts after the date of separation to keep your separate property separate, and marital property marital.  Consult with an attorney on how best to use the accounts created.

6. Consider the process you want to use.

In Virginia besides litigating in court, there are several processes you can use to get from a separation to a completed divorce.  They are negotiation, mediation, and Collaborative Law, and information about them can be found here:  https://www.curranmoher.com/blog/2020/04/17/divorce-without-court-options-for-a-less-cumbersome-stressful-process/.  It would be a good idea to review these options and discuss with your attorney which process option you believe may best fit your situation.

When you’re considering separation and divorce, it can be a challenge just figuring out where to start!  Fortunately, at Curran Moher Weis, we have the experience and expertise to help you navigate these waters.

Child Support in the Time of COVID-19

By Grant Moher, Esq.

As we continue to navigate the ongoing public health crisis of COVID-19, parents are facing limited options for summer child care, as well as the potential that their children’s schools may be entirely or partially online in the upcoming 2020-2021 school year.  This presents a particularly difficult situation for divorced couples who share custody.  Every situation is different, but the following are some things to bear in mind for those navigating this issue:

1. Child support is always modifiable. Child support can always be modified if there is a change in circumstances that warrants modification.  This could be a change in the income of either or both parties, a change in health insurance, or a change in the cost of work-related child care, to name a few.
2. Work-related child care is typically included in child support. The cost of work-related child care – that is to say the cost of summer camps, day care, before and after school care, and other similar programs is typically included in child support.  That means the custodial parent who has work-related child care typically determines the type of care, and the cost of the care on a monthly basis, then that monthly amount is factored into the child support amount that the non-custodial parent pays.
3. Older children. There is no set age cutoff after which work-related child care is no longer applicable.  Courts will look at the individual circumstances of each case; however in my experience, courts will typically start to view the necessity of child care for children over the age of about 12 or 13 with skepticism.  However, this may change as parents who have to work away from home grapple with how to provide their pre-teens and young teens with distance learning.  While children in this age range may be able to care for themselves for long periods of time, they may well need an adult presence to ensure their school work is being completed.
4. The other parent’s ability to care for the children may be a factor. Under section 20-108.2 of the Virginia Code, when determining whether to include the cost of work-related child care into child support, the Court must consider “the willingness and availability of the noncustodial parent to provide child care personally.”  Thus, if the non-custodial parent is laid off or working in such a way that he or she is able (and willing) to provide care personally for the children, the Court must consider that.
5. Nannies and Au Pairs. Requests to contribute to the cost of nannies and au pairs can often be a source of controversy, and whether the cost is reasonable will depend greatly on the individual circumstances of the case.  With school-age children, sometimes nannies and au pairs aren’t providing child care for large portions of the day and are instead doing other things for the household like cleaning and running errands.  Should the non-custodial parent have to pay for that?  Like in many situations, it depends on the circumstances.  Would it be possible to get a nanny only for the times of day the children aren’t in school?  Is the custodial parent’s job such that a live-in person is required (e.g. the parent is in a job that requires unpredictable work hours).  The current pandemic may make nannies and au pairs necessary in many households.  If a parent has to work away from the home, and children are not able to be in physical school during those work hours, a nanny or au pair may be the only available option for child care.
6. Work-related child care must come at a cost to be included. Courts can only factor the cost of work-related child care into the child support guidelines if it comes at a cost.  Often grandparents or other relatives will provide child care, but if this care is given for free, it will not be included in child support.  In my experience, Court will look with some degree of skepticism upon claims that relatives are paid for providing child care.  Claims will depend on the circumstances of the case.  Has this relative always been paid for child care?  Is the relative paid consistently in a form that is easy to verify (e.g. by check), or is he or she paid inconsistently, and in a format that can’t be verified, like cash?

The more “legitimate” the arrangement appears, the more likely a Court will view the child care arrangement as valid and include the cost in with the child support.  In light of the global pandemic, more grandparents and relatives may be providing care for school age children during times the children otherwise would have been in school or camps.  Payment to these relatives may have to be considered.

As you continue to determine the best path forward through the current COVID-19 pandemic, the attorneys at Curran Moher Weis are here to support you with child support, custody and other family law matters. Follow our blog for additional information and tips or contact us here for a consultation.

Divorce Without Court: Options for a Less Cumbersome, Stressful Process

By Grant Moher, Esq.

Current quarantines and mandated closures resulting from the COVID-19 outbreak will impact many people’s lives and businesses in very serious ways. One aspect I want to focus on, as it is currently affecting many of our clients, is the assumption that divorce must happen through court.

With Virginia courts halting all non-emergency hearings, couples pursuing litigation will experience substantial delays. For those couples, and those contemplating divorce, it is more important than ever to know: divorce doesn’t have to mean court.  In fact, the vast majority of our cases  (even those that start with court filings) resolve by other means.

Below is a guide to help you understand the various options for resolving your case without the expense, difficulty, delay, and uncertainty of court.

1. “Kitchen table” negotiation. So-called “kitchen table” negotiation is where you and your spouse discuss the terms of your divorce on your own and come up with a resolution.  One of you then hires an attorney only to draw up the agreement, and you both sign it.

It is crucial that an experienced attorney be the one to prepare the written agreement.  Some of the most difficult and costly situations I have seen in my nearly 20 years of practice were the result of couples signing agreements they drafted and signed on their own that contained conflicting provisions, vague terms, or were entirely unenforceable. Kitchen table negotiation can work well for low-conflict situations where there is a good deal of trust between the parties and everyone has full information about the situation, but you must work with an attorney who is well-versed on this process.

2. Attorney Negotiation. Attorney negotiation involves both parties hiring an attorney (or one hiring an attorney and the other spouse representing his or herself directly), and those representatives negotiating back and forth to resolve the couple’s situation.  Attorney negotiation can be very effective for situations where a couples’ communication has broken down, or there is a power imbalance between the parties.
3. Mediation. Mediation usually involves a series of meetings between a divorcing couple and a professional mediator who is trained to help them seek effective solutions to their disagreements.  Mediation is often a good alternative for situations that can’t simply be resolved through a “kitchen table” negotiation.

It is advisable that each spouse have their own attorney to advise them throughout the process, but the attorneys don’t necessarily have to attend the mediations. When I represent a client during mediation, I most often support that person by outlining a strategy in advance of or following a session.

In a situation where several mediation sessions are required, it can be useful for each party’s attorneys to attend and assist the couple in resolving remaining issues. I also typically recommend that one party’s attorney, rather than the mediator, draft the written agreement after the parties reach agreement in principle. It has been my experience that mediators sometimes do not draft agreements as “tightly” as the attorneys representing the   individual parties do.

4. Collaborative Divorce. Collaborative divorce is a process by which a couple signs an agreement committing not to go to court, and to resolve issues pertaining to their divorce over a series of meetings with attorneys who have received special Collaborative law training. The process may also involve other professionals such as a neutral financial professional to help with the division of assets and support, if appropriate, or a mental health professional to help with emotional aspects of a case and / or issues involving the parties’ children.

The Collaborative process delves into the difficulties between divorcing parties more deeply than mediation or other processes.  As a result, the agreement reached can often be a better foundation for separation and divorce.  This can be very important for parties divorcing with youn children, as they will need to work through issues involving those children for years to come. You can find more information about the collaborative process here.

Of course, it’s not always possible to resolve a case outside of court.  But your attorney should always discuss the various options to resolve your case outside of court – and he or she should do this in the very first meeting you have.

Curran Moher Weis has several experienced family law attorneys who are trained in Collaborative divorce, and all of our attorneys are skilled in resolving cases outside of court. Schedule a consultation with one of our Virginia divorce attorneys through our website here or by calling us at (571) 328-5020.

Check back here at our blog regularly for other news and tips we provide to support you as you navigate separation, divorce or child custody issues.

Divorce During a Global Health and Financial Crisis: What to Know About Dividing Assets

By Grant Moher, Esq.

As the world halts in a collective effort to slow a global pandemic, financial markets are in a volatile state. A bull market boosted investment portfolios for the last decade only to turn to a bear market that dropped stocks to historic lows last week, and has since been an erratic roller coaster.

While the market will recover at some point, couples who had been in the midst of, or were considering, a divorce before the crash have reached out for clarity on how to divide assets that have decreased significantly in value – once daily life resumes.

Here are 4 tips to divide and protect shared assets without having to liquidate them:

1. Retirement Accounts. If you and your spouse are dividing assets in a retirement account, like a 401(k) or 403(b), generally these are divided with court orders called Qualified Domestic Relations Orders, or QDROs for short.

QDROs can be usually be drafted to take market fluctuations into account.  For example a QDRO could provide that an account is to be divided as of a certain date, and that any market fluctuations that take place after that date are simply applied to both parties’ shares of the account.  Further, there are no tax implications to the transfer.  The plan simply creates a new account for the spouse getting their share of the plan.  That spouse can either keep their account with the plan, or transfer their share to a 401(k) or IRA in their name.

2. Thrift Savings Plans. If you or your spouse are federal government employees looking to divide a Thrift Savings Plan (TSP), that can be done with a Retirement Benefits Court Order (RBCO). The rules for dividing a TSP are similar to the rules for dividing a private sector retirement plan; however, there are a few nuances.  For example, the Order can provide that market gains and losses will be applied to the TSP balance, but that those gains and losses will only be calculated based on the TSP funds the individual was invested in on the date used to calculate the other spouse’s entitlement.  If the member changed those investments after that date, the calculations of gains and losses would have to be done by hand.

For additional information on dividing a TSP, please see the government’s official publication here:  https://www.tsp.gov/PDF/formspubs/tspbk11.pdf.

3. Dividing Brokerage Accounts. Spouses looking to divide non-retirement accounts, like traditional brokerage accounts, should generally divide these accounts by shares to the greatest extent possible. For example, if you have 100 shares of stock in a particular company that are to be divided in half, rather than liquidate that stock you can typically divide so that each spouse gets 50 shares of the stock. In a case where spouses are able to reach an agreement to divide an account by shares, the individual or institution that manages their accounts should should be able to work with them to determine an equitable split.

4. Loss Carryovers. Experienced family law attorneys are able to recognize and address when loss carryovers are an issue.  These sorts of carryovers come in many forms: 1) capital losses; 2) net operating losses; 3) passive activity losses; 4) charitable contributions; and 5) Alternative Minimum Tax credits.A full treatment of these loss carryovers would be too extensive for this post, but suffice it to say that if you have brokerage accounts and you’ve experienced losses, your attorney should be readily equipped with the knowledge and solutions to address these issues with you. A CPA or other financial professional should also be enlisted to help determine your options.

There are many intricacies to consider with investment and other asset division in a divorce. While many divorces are currently on hold as citizens take necessary quarantine and shelter-in-place measures, our attorneys at Curran Moher Weis are available to answer your questions through phone and virtual consultations.

You can request a consultation here on our website or by calling us at (571) 328-5020.

HOW DISABILITY CLAIMS CAN IMPACT THE DIVISION OF MILITARY RETIRED PAY IN A VIRGINIA DIVORCE

By: Grant T. Moher, Esq.

If you are a military member or the spouse of a military member going through a divorce in Virginia, military retired pay is almost certain to be an important factor.  Disability pay can also be a component of a servicemember’s compensation – one that is typically intertwined with a military member’s disposable retired pay.  Disability pay is typically non-taxable to the servicemember.  Disability pay is also not typically divisible by a court.  For these reasons, you should have a clear understanding of the way in which a disability claim can affect a military pension, and ensure that your attorney does as well.

There are three separate systems for military disability benefits: 1) Military disability retired pay; 2) Veteran’s Administration (VA) disability compensation; and 3) Combat-Related Special Compensation (CRSC).  You should be aware of all of these, and how they may affect your situation:

• Military Disability Retired Pay. This pay is available for servicemembers who become disabled such that they cannot perform their assigned military duties.  If a servicemember has enough creditable service, he or she may be able to draw this type of disability pay.

There are three steps to determining the rate of this disability pay.  For the sake of example, assume the servicemember has an active duty base pay of $4,000 per month, 20 years of creditable service, and a disability rating of 60%. To determine the calculation, first, calculate the servicemember’s normal retired pay based on his or her years of service.  Let’s assume for this calculation that this number is $2,800. Then, multiply his base pay times his disability rating ($4,000 x 60% = $2,400). The servicemember receives the higher of these two amounts so in this case, he would receive a total of $2,800.  However, only the difference between these two amounts (i.e. $400) would be divisible by a court in divorce proceedings.

• Veteran’s Administration (VA) Disability Benefits. These benefits are the most common, and arise when the extent of the disability is not so great as to qualify the servicemember for Military Disability Retired Pay and/or is detected after retirement.  The extent of disability benefits a servicemember receives can have a significant impact on whether the former spouse’s share is affected.

If a servicemember makes a successful claim for VA Disability, and is determined to be less than 50% disabled, the VA Disability Benefits received reduce the amount of the disposable military retired pay dollar-for-dollar.  Take, for example, a servicemember receiving $4,000 per month in disposable retired pay, and he and his former spouse are dividing that evenly, so each receives $2,000.  If the servicemember files a successful VA Disability claim and receives $750 in benefits, that $750 would be reduced from the $4000.  This would mean the servicemember would receive $2,375 in combined disposable retired pay by the VA Disability, and the former spouse would receive $1,625.

However, if a servicemember is 50% disabled or more, Concurrent Retirement and Disability Pay (CRDP) kicks in.  With CRDP, the servicemember receives both his or her disposable retired pay and VA Disability Pay with no offset.  Under the scenario above, the former spouse would continue to receive $2,000, while the servicemember would receive $2,750.

• Combat-Related Special Compensation (CRSC). This compensation is awarded to anyone who has a disability of at least 10% that is directly related to the award for a Purple Heart decoration or a disability rated at 10% or higher related to combat, operation, or hazardous duty.  Like CRDP, any CRSC received is in addition to disposable retired pay.

As you can see, it’s possible that a servicemember can drastically reduce or even eliminate the former spouse’s share of disposable retired pay by applying for disability.

Until recently, some Virginia courts took the position that even though they couldn’t require the military to pay disability to a former spouse, they could order the servicemember to indemnify the former spouse if he or she ever claimed disability and in doing so, reduced a former spouse’s entitlement to disposable retired pay.  However, this option is no longer available.

The United States Supreme Court in Howell v. Howell, 137 S. Ct. 1400 (2017) held that such indemnification orders were unconstitutional.  A state divorce court couldn’t do indirectly (require indemnification for a disability claim) what it couldn’t do directly (require the military to pay a portion of a servicemember’s disability pay to a former spouse).

It can be a nasty shock for a former spouse’s share of retired pay to be reduced or eliminated due to a servicemember’s receipt of disability pay – a risk that a former spouse assumes if their divorce case goes to trial. So what can be done?  In the wake of Howell, there are several options, but all require a Settlement Agreement where a case does not go to trial:

1. Add an indemnification clause to the Agreement that resolves the case. This would require the servicemember’s consent, of course, but if the servicemember is willing to agree to an indemnification clause, that clause would likely be enforceable.

2. Ask for an additional award of spousal support. If disability pay is already being received at the time of divorce, the former spouse could ask the court to award additional spousal support to account for the disability payments received by the servicemember party.

3. Ask for a reservation to seek spousal support in the future. If the servicemember has not yet retired and claimed disability, but may do so in the future, a former spouse can ask the court to reserve his or her right to receive spousal support in the future.  That way, the court can reevaluate the parties’ financial positions if disability is claimed after retirement, and make a spousal support award accordingly.

These are clearly complex issues that require careful consideration and extensive knowledge of the nuances of a military divorce. Whatever your situation, if you are a military member or military spouse going through separation and divorce, you should ensure you work with a divorce attorney who is experienced in military issues.

Contact one of Curran Moher Weis’s expert attorneys who can help you navigate and ensure you are protected in a military divorce.  Set up a consultation here.

HOW FEDERAL EMPLOYEES’ GROUP LIFE INSURANCE SPOUSAL BENEFITS WORK IN A VIRGINIA DIVORCE

By Grant T. Moher, Esq.

Divorcing parties have essentially always been able to agree to maintain life insurance for one another, and for the court to enforce those agreements.  Until recently, though, Virginia courts have not had the ability to require a spouse to maintain life insurance for the other absent the parties’ agreement.

Now, section 20-107.1:1 of the Virginia Code is in effect, and Virginia courts have the ability to require spouses paying support to maintain a policy of life insurance to benefit the recipient spouse.  Virginia has a large federal workforce, and federal employees are covered by the Federal Employees’ Group Life Insurance Program (“FEGLI”).  Under section 20-107.1:1, can a court now require a federal employee who has a spousal support obligation to name his or her former spouse as a beneficiary of some or all of his or her FEGLI policy?  The answer is yes.

I have spoken to a great many family law practitioners who are not aware of the current federal laws regarding FEGLI, and who believe that state court orders requiring the designation of beneficiaries on FEGLI policies are not enforceable due to the law of federal preemption.  While this was once true, it is no longer the case and has not been the case for 20 years.

The following is a description of the evolution of the law regarding FEGLI, and sheds light on why it is not commonly known that court orders to require the maintenance of FEGLI policies are, in fact, enforceable:

In Ridgeway v. Ridgeway, 454 U.S. 46 (1981), Army Sergeant Ridgway and his former wife got divorced in Maine.  The Maine divorce decree required Sergeant Ridgway to maintain the parties’ three children as beneficiaries on his Servicemembers Group Life Insurance (“SGLI”) Policy provided to him through his employment with the Unites States Army.

Sergeant Ridgway remarried and changed his SGLI policy to provide for payment of the death benefit to his new wife.  Sergeant Ridgway died, and the state court had to confront the question of who should receive the death benefit.  Ultimately, the United States Supreme Court held that the death benefit must be paid to Sergeant Ridgway’s new wife, because to hold otherwise would run afoul of the Supremacy Clause of the United States Constitution, which dictates that federal laws trump state laws where there is a conflict between the two.  In so holding, the Court found that the federal law of SGLI, which provided that a servicemember’s beneficiary designation controlled how his or her SGLI benefits were paid, trumped the Maine state court order requiring a different beneficiary to receive payments.

At the time of the ruling, FEGLI operated essentially the same as SGLI, so at that time, a state court order requiring the naming of a life insurance beneficiary could not override the employee’s beneficiary designation on file with the Federal Government’s Office of Personnel Management (“OPM”).

The law regarding FEGLI beneficiary designations was changed, however, in 1998.  That year, the United States Congress passed Public Law 105-205, which provided for the first time that state court orders directing the maintenance of insurance and the naming of beneficiaries overrode the employee’s beneficiary designation.  The only caveat to this was that to be effective, the state court order had to be transmitted to the employee’s agency (or to OPM generally if the employee was retired) prior to his or her death.  Subsequent regulations interpreting Public Law 105-205 published on April 6, 1999 describes the change in the law as follows:

The Federal Employees’ Group Life Insurance (FEGLI) law sets an order of precedence for payment of benefits following the death of an insured employee, annuitant, or compensationer (5 U.S.C. § 8705). First in the order of precedence is a designated beneficiary. There has been no statutory limitation on changing designations.  When a divorce decree requires an individual insured under FEGLI to name his/her children or former spouse as the beneficiary, it is possible the individual may not comply or may comply and then change the designation at a later date. This action, while potentially in violation of the court order, did not violate the FEGLI law.

Pub. L. 105-205, 112 Stat. 683, enacted July 22, 1998, requires benefits to be paid in accordance with the terms of a court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement relating to a court decree of divorce, annulment, or legal separation, regardless of whether or not the insured individual actually completes a designation complying with the court order, if the court order is received in the appropriate office before the death of the insured individual. To the extent provided in the court order, the court order supersedes any prior designation by the insured individual. Pub. L. 105-205 also prohibits an insured individual from changing his/her designation, unless the person(s) named in the court order agrees or unless the court order is subsequently modified by the court that originally issued it.

Why, then, do so many practitioners believe that court orders directing FEGLI beneficiaries can be overridden?  The answer likely lies with the Federal Government’s published Handbook for Attorneys on Court-ordered Retirement, Health Benefits and Life Insurance.

The Handbook was originally published by the Federal Government to educate attorneys on the various retirement, health, and life insurance benefits enjoyed by Federal Government employees, as well as to assist attorneys in generating the proper forms to divide the benefits between divorcing spouses.  (The Handbook can be found on OPM’s website, www.opm.gov. Regarding FEGLI, it provides that beneficiary designations can be changed by the employee at any time.)

However, the handbook was last updated in 1997 – a year before Public Law 105-205!  The Federal Government has simply never gotten around, in the last 20 years, to updating the Handbook to reflect the current state of the law regarding FEGLI beneficiary designations.

It should be noted, however, that the Federal Government does not appear to have enacted a provision similar to Public Law 105-205 for the SGLI policies that cover military members.  Thus, a court order requiring a divorcing Servicemember to designate his or her former spouse as a beneficiary under his or her SGLI would not survive the Servicemember’s later decision to change his or her beneficiary.

It is essential to hire a divorce attorney who is knowledge about the nuances and complexities of family law. The experienced attorneys at Curran Moher Weis make a point to stay up to date on these matters, and to serve as an educated, supportive guide for our clients as we navigate their divorce together.

If you are a federal government employee or spouse pursuing a divorce, contact us to discuss a plan that will set you up for as successful and painless of a process as possible.

How Holidays Work in Divorces and Child Custody Cases

By Grant T. Moher, Esq.

A New Year is almost upon us, and couples going through a separation or divorce this season are likely experiencing the difficulty of agreeing to holiday custody and visitation agreements. With a New Year comes another 12 months of special days that divorcing, or divorced, parents have to determine how to manage – from Christmas, to Federal holidays that result in long weekends, like Martin Luther King, Jr., Day and President’s Day, to children’s birthdays and summer school breaks.

As you plan for the year ahead, this blog will help you better understand how holiday visitation schedules work for these unique situations.

1. Federal Monday Holidays

Often, parents want to evenly divide Federal Monday holidays (e.g. Martin Luther King, Jr. Day, President’s Day, Memorial Day, Labor Day, etc.) – even if the weekend that Monday follows was spent with the other parent. Unless there is a very important reason for this, it is typically better for children to spend Federal Monday holidays with the parent with whom they spent that adjacent weekend. This facilitates out-of-town travel and activities that may run from the weekend into the holiday and makes it easier on and less disruptive to the children.

2. Children’s Birthdays

Sometimes parents want language in an agreement obligating both parents to share time with the children on their actual birthdays or celebrate the birthdays together. There are important factors to consider to make this approach work. If parents are getting along well enough to have a joint birthday party for the children, they don’t need an agreement to force them to do it. If parents do not have such a relationship, forcing a joint party or negotiating a split of time on the actual day can result in a tense and unpleasant atmosphere. If parents aren’t on terms that allow them to have an amicable joint celebration, a better scenario is for each parent to have an individual celebration for the child on his or her time, such as on the nearest weekend.

3. Summers

Commonly during summers, parents will each have some uninterrupted weeks with the children. Depending on the level of cooperation between the parents, agreements may need to include provisions for how those weeks will be determined. In situations where parents are likely to disagree on weeks, there are several methods of resolving disputes. For example, some choose to state that in odd-numbered years (2019, 2021, etc.) one parent’s chosen weeks take precedence, and in even-numbered years the other parent’s preferences take precedence.

Another possibility is to require that a parent’s week start and end on a particular day that encompasses his or her already-scheduled weekend. The upside to this approach is that it is impossible for the parents to schedule weeks that conflict with each other. The downside is that a major event (e.g. a wedding or family reunion) may fall outside of these potential weeks.

Since events come up, and other situations could occur that need advance planning, such as summer camps, I typically advise parents to give notice of their chosen weeks as early as reasonably possible in the New Year. There is nothing to guarantee both parents will agree to those weeks and that further issues won’t arise, such as when parents do not provide ample notice of their preferred weekends, language can be built into agreements to get ahead of this.

4. Thanksgiving and the issue of three weekends in a row

Where parents have a regular schedule that involves alternating weekends and the custody schedule provides that Thanksgiving encompasses both the holiday and the weekend immediately following it, one party or the other can end up having three weekends in a row with the children. This happens if one parent’s Thanksgiving falls on the other’s weekend. Sometimes parents are fine with this. However, if they are not, the good news is there are multiple ways to solve this.

One way is to make Thanksgiving encompass only the Wednesday through Friday of the holiday and not the weekend. This solves the problem of three weekends in a row, but this may not be desirable when one or both parents customarily travel over the holiday and want the entire weekend to do so. Another option is to “reset” the schedule if it were to result in one parent having three weekends in a row, such that the weekend immediately following Thanksgiving weekend would switch to the parent who did not have the children over Thanksgiving weekend and the weekend immediately prior to it.

5. Spring break

It is customary in custody schedules to make provisions for spring break.  Children and their parents often travel during this week as it is normally the longest break schools have between winter break and summer recess.  Some custody schedules alternate the entirety of spring break each year and some schedules split the spring break in half, with each parent having time with their children.  Whether you choose to alternate or split spring break, it is critically important to define exactly which days spring break covers.  Most school calendars define spring break as the Monday through Friday of the week, leaving off the weekends.  Thus, if the intention is to include the immediately preceding or following weekend, the custody schedule must clearly define this.  The same is true if the custody schedule splits the spring break week in half; parents need to know what the start and end date is to calculate the halfway point.

Example of a Holiday/Summer Schedule:

While holiday/summer schedules can be adjusted in virtually any way, sometimes people want to begin with a generic template to give them an idea of how to start. The following is a common schedule that can be modified, and can at least give a basic idea of how such schedules can look.

Note, the following is provided for example purposes only. Visitation schedules must be developed and tailored to meet the unique needs of each couple and their child(ren). It is important to seek support from a family law attorney with extensive experience counseling on the best visitation schedule for you.

A.  Holiday Visitation

Holiday visitation shall be as set forth below. To the extent that the holiday visitation set forth below conflicts with the regular weekly custodial schedule, the holiday visitation shall supersede it.

1. Spring Break
   The parties shall alternate the children’s school Spring Break each year, defined as 5:00 p.m. on the Sunday after school releases until 5:00 p.m. the Friday before school reconvenes. Father shall have Spring Break in even-numbered years. Mother shall have Spring Break in odd-numbered years.
2. Thanksgiving
   Thanksgiving shall be defined as the time school lets out on the last day of school before the Thanksgiving holiday until 5:00 p.m. on the Friday immediately following the holiday. Mother shall have the children for Thanksgiving in odd-numbered years. Father shall have the children for Thanksgiving in even-numbered years.
3. Winter Break
   The children’s winter break from school shall be divided in half. In odd-numbered years, Mother shall have the children for the first half of the winter break, and Father shall have children for the second part of the winter break. In even-numbered years, Father shall have the children for the first part of the winter break, and Mother shall have the children for the second part of the winter break.
4. Fourth of July
   The parties shall alternate the Fourth of July holiday each year, defined as 10:00 a.m. on the holiday until 10:00 a.m. the next morning. Mother shall have Fourth of July in odd-numbered years. Father shall have Fourth of July in even-numbered years.
5. Father’s Day
   In all years, Father shall have the children from 9:00 a.m. until 5:00 p.m. on Father’s Day.
6. Mother’s Day
   In all years, the mother shall have the children from 9:00 a.m. until 5:00 p.m. on Mother’s Day.

B.  Summer Visitation

Each parent shall have the children for two (2) uninterrupted weeks during the summer, which may be taken consecutively. Each parent shall designate their week by April 1st each year. If the parties’ chosen weeks are in conflict, mother’s choice shall control in odd years and Father’s shall control in even years. Unless otherwise agreed in writing, weeks shall start at 5:00 p.m. on the Friday beginning a party’s weekend, and continue through the following Friday at 5:00 p.m.

Visitation schedules can be complicated and can cause tensions to run high amongst parents. The attorneys at Curran Moher Weis have decades of experience in guiding parents through negotiating a custody and visitation schedule that is optimal for parents and most importantly, their children. Contact us for more information, and check back on our blog regularly for the latest advice on this and other important divorce and custody matters.

How Current Political Tensions are Impacting Marriages

Politics have always been a hot button issue, but the current divisions in our country seem especially pronounced.  A new national poll from Wakefield Research indicates that the tense political environment, particularly differing views over President Trump’s election and platforms, is causing rifts in marriages and relationships like never before.

UPDATE: Adultery, “Crimes Against Nature,” and the Fifth Amendment in Virginia

I originally wrote my article on adultery in Virginia in 2006 and updated it for publication in Virginia Family Law News in 2009. Since that time many prospective clients (and more than a few fellow attorneys) have contacted me to discuss the rather thorny legal issues that have surrounded the issue of adultery in Virginia. The law has now changed, however, so if you read my original adultery article here you should also read this update.

Adultery and the Fifth Amendment in Virginia

Adultery (which is defined as male/female sexual intercourse only) is still a crime in Virginia for the married participant, although one which is rarely, if ever, prosecuted. This means that under certain circumstances the married participant may “plead the Fifth” and refuse to answer questions regarding adultery. However, the law has changed with respect to section 18.2-361 of the Virginia Code — the so-called “crimes against nature” or “sodomy” statute. As you may have seen in my prior article, this statute used to make it a felony for people to engage in a whole range of sexual contact, including oral sex and same-sex acts. This allowed people to “plead the Fifth” to this conduct as well. This statute, however, was amended in 2014 to remove the prohibition on sexual contact between non-related consenting individuals.

What does this mean? Broadly, it means people can’t refuse to answer questions about same sex conduct in divorce proceedings anymore. If you think this may apply to your situation, you should consult with an experienced Virginia Divorce Attorney who is well-versed on issues of adultery and the Fifth Amendment.

Top 5 Things to Consider about Paying for College in a Virginia Divorce Proceeding

If you’re getting divorced in Virginia and have minor or college-age children, paying for higher education expenses can be a significant issue. Here are the top five things you should know about college expenses and divorce:

1. A Court Can’t Order You to Pay for College Tuition.

In Virginia, a court cannot require either parent in a divorce proceeding to pay for their children’s college expenses. If the parties have a written agreement to pay for their children’s college expenses the court can enforce that agreement. But absent such an agreement, the court has no authority to require either or both of the parties to pay for college. If you want your spouse to agree to contribute to college costs, it’s only logical that he or she would seek to require you to do the same. So the first question you have to ask is: do I want us both to be contractually bound to pay college expenses?