Passport Issues in Divorce and Custody Cases

International travel with children can be a hotly contested issue in divorce or custody cases, and even more so in our extremely transient, diverse, and well-traveled Northern Virginia population.  Many times, parties are able to work out mutually agreeable terms regarding international travel, but others aren’t so fortunate.  A parent might be concerned about his or her child traveling internationally for any number of reasons, including the safety of the destination country and the concerns of parental kidnapping.  This will serve as an introduction to some passport issues and how the state courts can get involved.

Most know that a passport is required for most international travel.  But even if international travel is not planned or expected, a passport can also be useful as a form of identification for a child, though a Child ID Card issued by the Virginia Department of Motor Vehicles is generally easier to obtain.

U.S. passports may only be obtained by U.S. citizens and nationals.  An applicant who meets the criteria for a passport must be issued one.  Thus, as long as you can “check all the boxes” you are generally entitled to a passport.  The State Department cannot arbitrarily decline a request for a passport.

Curran Moher Weis Expands and Moves Offices

After opening our doors in July of 2012 we experienced rapid growth. Within two years we needed to more than double our office space. In July 2014 we moved a few blocks within Fairfax City to 10300 Eaton Place, Suite 520 Fairfax VA 22030. With a collaborative effort our new office space was designed and decorated with great results. To celebrate our new space we opened our doors to colleagues and neighbors for an open house on September 10, 2014.

Here are just a few snap shots from that evening.

Top-left: Our large conference room was converted into a buffet of delectable h’orderves provided by Shirley’s Catering; top-right: Reception desk, with our new Curran Moher Weis logo on the wall; bottom-left: front reception area for guest and clients; bottom right: Balloons in our company colors, burgundy and silver, lined the hallway to our front doors.

Curran Moher team photo: Back row (left to right) Andy Harman, Jason Weis, Steve Goldman, Jerry Curran, Grant Moher; front row (left to right) Melissa Rose, Lynette Kleiza, Janet Calderon, Erin York, Katherine Zouras, Suellen Honeychuck.

Custody Cases Involving Relocation

For ease of reading, the party seeking the relocation is referred to as the “relocating parent” and the party opposing the relocation is referred to as the “other parent”

With the number of people constantly moving in and out of the Northern Virginia area, it’s no wonder that relocation cases are some of the most frequently litigated domestic relations cases in our courts. Two separating parents that plan on living relatively close to each other can frequently come to a compromise that can be much more elusive in long-distance relocation cases. Indeed, many parents who even bring up the possibility of a long-distance move are met with an “over my dead body” type response from the other parent.

Regardless, in many circumstances, moves are unavoidable. For example, a recently divorced spouse might find that finances are so tight after the divorce that he or she simply can’t afford to remain in the costly Northern Virginia area. Other times, a new job or job transfer requires relocation. Parties may wish to relocate for a new spouse, or to move to an area they feel is “home,” often to be near relatives and the support network they can provide. Some may feel they would benefit from a fresh start or a change of scenery – a form of “geographic therapy”.

The law:

If the request to relocate with the child is made as part of an initial custody determination (i.e. a complaint for divorce or petition for custody), then the Court simply analyzes how the “best interests of the child” factors listed in §20-124.3 of the Code of Virginia apply to the facts of a particular case in determining whether a relocation is justified. If a custody order is already in place, the party seeking relocation needs to clear the additional hurdle of proving that there has been a material change in circumstances since the last order was entered. The burden to prove both is on the party seeking relocation. In the latter types of cases, the existing custody order will most likely require a party seeking to relocate to give the court and the other parent at least 30 days’ notice of the intended relocation. Note that the court cannot prohibit a parent from relocating – it can only prohibit the parent from taking the child with him or her.

Equitable Distribution of Property in Virginia: What is “Hybrid” Property, and How is it Divided?

Do the words “Brandenburg,” “Keeling,” or “reasonable rate of return,” mean anything to you? Probably not — but if you’re going through a divorce, they had better mean something to your attorney! Each is a different method that has been used by Virginia courts to divide hybrid property between spouses.

First of all, what is property?

“Property” is a general term that includes everything of value owned by two married people. It can include real estate, bank and investment accounts, retirement accounts, pensions, stock options – even “intangible property,” like the right to profit from patents or books written by a party.

Ok, so what is hybrid property?

In a Virginia divorce case, property owned by either party, or both parties together, can be classified by a court in one of three ways: marital, separate, or a combination of the two, known as “hybrid.” Marital property is generally any property acquired during the marriage, by either party individually or by both parties together, regardless of how the property is titled. Separate property is generally any property acquired by a party before the marriage; acquired during the marriage if by gift from a third party, inheritance, or other source outside the marriage; or acquired after separation.
Hybrid property is a combination of marital and separate property. It can occur in many forms, for example:

Division of Military Retired Pay in Virginia

Divorce when one or both spouses are current or former members of the military can be quite a bit different than a civilian divorce. One of the main differences is the existence of a servicemember’s military retired pay. Issues such as the logistics of dividing the retired pay, the impact of disability pay, and survivor’s benefits must all be considered. The following are five issues that can arise in a military divorce.

Military Retired Pay in General and Divorce

Virginia courts have the ability to divide a military member’s “disposable retired pay” between the member and his or her spouse.  Courts in some other states do not have this ability, and courts in foreign countries do not have this ability, so where the divorce takes place can have a major impact on the division of military retired pay, which can often be a large asset.

“What About My Engagement Ring?” Issues of Personal Property Division in Divorce

Engagement rings are a good example of how personal property issues can sometimes become quite complicated in a divorce.

Virginia Engagement Ring Law History

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 makes 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.

Could Living With a Friend Cut Off Spousal Support?

In the recent case of Brennan v. Albertson, Sheila Brennan had her spousal support (also referred to as alimony) terminated when she was found by a Court to have been living with a partner in a relationship analogous to marriage for more than one year. What made the case unique was that Ms. Brennan’s partner was female — and there was no evidence that the two had any sort of romantic or sexual relationship.

In Virginia law, a typical spousal support award terminates upon one of the following things occurring:

1) the death of either party;

2) the remarriage of the recipient spouse; or

3) if it is proven that the recipient spouse has been habitually cohabiting with another person in a relationship analogous to marriage for one year or more.

While death and remarriage are pretty straightforward, cohabitation is often far less so.

Brennan met her friend, Lisa Baker, at an Alcoholics Anonymous meeting in 2006, around the time Brennan was going through divorce proceedings with her then-husband, Paul Albertson. Shortly after Brennan and her husband divorced, she purchased a large home with a significant amount of her own money, and Baker moved in with her. Baker paid the mortgage and utility bills. They ate meals together, watched each other’s children, attended extended family functions together, and contributed financially to each other’s children. However, they maintained separate bank accounts, car titles, and had no romantic or sexual relationship. They characterized their relationship as being very close friends, and “like sisters.”

No single factor can determine whether individuals are cohabiting in a relationship analogous to marriage. As a result, cases involving cohabitation are highly fact-specific, as was this case. After a thorough review of the evidence, the trial court terminated support, holding essentially that the financial and other support provided each party constituted a relationship analogous to marriage. The trial court was affirmed by the Court of Appeals.

What does this mean moving forward?

The Court of Appeals took great pains to paint the case at issue as one-of-a-kind, involving a rare set of circumstances that was not likely to be the basis for an explosion of other, similar cases. The Court also specifically exempted people living with family members as being eligible to have their support cut off, as a relationship between family members “differs intrinsically” from a relationship between unrelated persons. It remains to be seen whether this case will be a “one-hit wonder,” or whether it will have a larger impact across the domestic relations field in Virginia.

If you have questions about spousal support in Virginia, or whether cohabitation may be applicable to your situation, call the experienced Fairfax Family Law attorneys at Curran|Moher P.C. at (571) 328-5020.

News Release: Announcing the Opening of Our Family Law Firm in Fairfax

We recently announced and celebrated the opening of our firm in Fairfax, VA and are pleased to share the news release here:

October 4, 2012 (Fairfax, VA) – Family law firm, Curran | Moher, P.C., recently celebrated its opening in Fairfax, Virginia.  The firm was founded in August of this year by Gerald Curran, Esq. and Grant Moher, Esq., formerly partners at one of Virginia’s largest family law firms. The firm hosted an intimate gathering of friends, family, and associates at its new Fairfax office to celebrate the launch.

Partners, Curran and Moher, are joined by associates, Jason A. Weis and L. Akinyi Orinda, along with an experienced paralegal team and office staff.

Curran | Moher is dedicated to family law and divorce in Virginia with practice areas centering on the most pressing family-related legal issues couples may face, including child custody, child visitation, property division, prenuptial agreements, spousal support (alimony) and child support, military divorce issues, and myriad other issues.  The attorneys at Curran | Moher have specific experience in complex domestic relations litigation.

“This firm represents the deep commitment of our partners, attorneys, and staff to remain focused on meeting the needs of our clients by providing a tailored approach for each individual,” remarks Gerald Curran, Esq., partner and founder of Curran | Moher.

The attorneys at Curran | Moher combine more than 35 years of family law and trial experience, and have received honors from  Super Lawyers, the AV® Preeminent™ rating from Martindale Hubble, and notoriety in publications including Washingtonian Magazine, Ten Leaders, Northern Virginia Magazine, and more.

Adding to these honors, Gerald Curran and Grant Moher were recently selected by their peers for inclusion in The Best Lawyers in America© 2013* in the field of family law.  This is Curran’s seventh career selection and Moher’s inaugural inclusion.

To learn more or to request a consultation with a Curran | Moher attorney, visit www.curranmoher.com or call (571) 328-5020.

Photos from the celebration can be found here.

*Copyright 2012 by Woodward/White, Inc., Aiken, SC

6 Myths About Separation and Divorce in Virginia

Often, clients who see me for an initial consultation arrive with information they may have learned from friends, family, or the internet – information which may not be accurate. The following are six common myths I have heard regarding separation and divorce, and the facts about each.

Myth # 1: “If we can’t agree on everything, we have to go to court.”

Fact: Although some divorce cases end up in a final hearing before a judge, the vast majority of cases are resolved beforehand — even cases that start out being very contentious.  Someone has to make decisions on issues regarding children, support, and property.  The people in the best position to make these decisions are the parties themselves, although many need help getting there.