In-House Separation in Virginia – How do you do it?

You may know that you and your spouse must live separately for a period of time (either six months or a year, depending on the circumstances) before you qualify for a no-fault divorce in Virginia.  But must you and your spouse live in separate households before or during a pending divorce to qualify as being separated? The short answer is “probably not.” In most cases, you and your spouse can continue to live in the same home during your separation and/or pending divorce proceedings, provided you take steps to establish an “in-home separation.”

Virginia courts generally recognize in-home separations as valid.  Courts realize that sometimes divorcing spouses are unable or unwilling to maintain separate households for financial, child care, or other reasons during the divorce.

So how does an in-home separation work? That answer is a bit more complicated and there is no single way of doing it, but outlined below are some of the important things to consider when separating in the same home.

Will Adultery Impact My Security Clearance?

It sometimes seems that nearly every government employee or military officer working in Arlington, Alexandria, Fairfax, and/or Loudoun Counties has some form of top secret security clearance. As a result, I am often asked “will my divorce affect my employment” or, more commonly, “could committing adultery impact my security clearance?” The answer typically is: it depends on your security officer and what you have done. Here are some things to consider:

3 Strategies to Keep Your Virginia Divorce Out of Court

Everyone has heard the horror stories of divorce. Perhaps you have a friend who had to liquidate a child’s college fund to pay for his attorney. Another spent the better part of two years battling over custody of a young child. Yet another got an unfair decision from a “bad” judge. The stories are countless. However, most of these stories stem from litigation.

When two parties go to court to resolve a dispute, they guarantee the following outcomes:

Hiding Assets in a Virginia Divorce is a Game No One Wins

In anticipation of a divorce, most attorneys will advise their clients to gather financial documents and make a detailed list of their assets. Attorneys may even advise a client to secure up to 50% of the couple’s liquid assets (e.g., transferring money from a joint account to an individual one). The rationale behind this aggressive strategy is that the other spouse cannot dispose or hide assets to which he or she does not have any access.

Logically, the other side of the coin seems to be that it would be advantageous for a spouse to hide or squander those very same assets before they are divided. If a spouse does not know a particular asset exists, or it has already been spent, that asset cannot be divided. However, court rules and procedures, as well as improved investigative techniques, have made this a risky endeavor.

Divorce and the Holidays: Tips from Curran Moher Weis

As the Christmas and New Year holidays are fast approaching, you want to be able to enjoy the holidays with your children and other loved ones.  If you are divorced with children or in the midst of a divorce with children, the holidays can be a very stressful time.  The last thing that anyone wants to do is argue over custody and visitation issues with their former spouse or soon-to-be former spouse during what should be a joyous and happy season.

Children’s Testimony in Custody Cases

One of the biggest dilemmas that both family law attorneys and parents face in custody cases is whether a child should testify in the custody trial.  Some parents want to shield their child from the court process regardless of the circumstances, while others want to give their child a voice – particularly if the child wants to be heard.  Let’s look at some things to consider when this issue pops up:

Children’s Testimony, The law:

In custody cases, trial courts have a list of factors they must consider in determining what is in the “best interests of the child.”  These factors are listed in §20-124.3 of the Code of Virginia.  Factor 8 instructs the court to consider 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.”  A judge, after examination of the child or hearing evidence about the child’s age, maturity, and intelligence, has the discretion to decide whether the child is competent to testify. 

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?

Holiday Visitation

Holiday Visitation Custody

Holiday and summer schedules can often be a source of conflict between divorcing parties. The following are some common issues that can arise in crafting custody and visitation agreements, and potential solutions for them.

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

Where parties 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 Parent A’s Thanksgiving falls on Parent B’s weekend. Sometimes parents are fine with this. However if they are not, this issue can be solved in several ways. 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 “reset,” or switch to the parent who did not have the children over Thanksgiving weekend and the weekend immediately prior to it.

Are You Sure You’re Married? A Lesson Learned in Court of Appeals

Are you sure you’re married? How could you not know if you’re married?

Excellent question. I’ll tell you how:

In the recent Court of Appeals of Virginia case MacDougall v. Levick/Levick v. MacDougall, a man and woman (notice how they aren’t referred to as husband and wife) had a marriage ceremony performed in Virginia by an officiant licensed by the Commonwealth. However, they did so prior to obtaining a marriage license. According to the trial court and the Court of Appeals, this made all the difference in the world. Despite the parties obtaining their marriage license 16 days after their wedding ceremony, living together for over 8 years, entering into a marital agreement to deal with their divorce or separation should it occur, and doing all other things to hold themselves out as husband and wife; not to mention sincerely believing they were married, the Virginia Court of Appeals determined they were not.