Archive | April 2013

What can be included in spousal support?


"the provider" by author

“the provider” by author

When a marriage ends, there is always the possibility of a significant decrease of income for each party, especially if one of the parties made a lot more money than the other.  The purpose of spousal support (alimony) is to help alleviate the sudden reduction in income for the more disadvantaged party.

Spousal support can be negotiated between the parties or determined by a judge, and it is usually meant to be temporary, ending after a specified term, remarriage by the party receiving payments, or the death of either spouse.  However, a judge can establish permanent support under certain circumstances, such as the supported spouse’s inability to become self-supporting.

If the parties cannot reach an agreement for spousal support, the judge is required to take the following factors into consideration, as listed in Va. Code § 20-107.1:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under § 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;

12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and

13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Premarital (Prenuptial) Agreements: The Basics


"not exactly a private moment" by author

“not exactly a private moment” by author

A premarital agreement, popularly known as a “prenuptial agreement” or “prenup,” is a legally binding contract ratified for the purpose of setting terms for the dissolution of a marriage should it occur.  Both Virginia and DC have adopted the Uniform Premarital Agreement Act, setting forth the elements of a prenup in Va. Code § 20-150 and D.C. Code § 46-503.

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

4. Spousal support;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. The ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

There is no specific form required for a premarital agreement, and it does not have to contain all of the items listed above.  However, it must be entered into under the rules of a standard contractual relationship and without coercion (see Va. Code § 20-151 and D.C. Code § 46-506).

While an insistence or desire to enter into a prenup may appear to some as a sign of mistrust, please keep in mind that it would solve a lot of potential problems and emotional distress in the future should something go wrong in the marriage.  And on a more basic level, it can help a couple be open as to what they expect of each other.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

An explanation of the “public safety” exception to Miranda v. Arizona


On April 19, 2013, Dzhokhar Tsarnaev, 19, was captured after a five-day manhunt following the Boston Marathon bombings.  Almost immediately, a dispute over how to treat the only surviving supect of the bombings played out over mass and social media outlets.  Should he be considered an “enemy combatant?”  Should he be tried in a civil court or a military tribunal?  Should he be read his Miranda rights? 

First, without looking at what should and should not be done, these are the facts as we know them:

1) Tsarnaev is an American citizen.

2) Tsarnaev and his brother, Tamerlan, 26, who was killed during the manhunt, are suspected of murdering four people and injuring over 100 more over the course of five days in and around Boston.

3) The brothers are Muslims of Chechen descent who have been in the United States for more than ten years.

4) There is no indication as of yet that they have any connections to any international terrorist organization, and no group has claimed responsibility for their actions.

Upon capture, it became big news when major news outlets erroneously reported that the FBI read Dzhokhar Tsarnaev his Miranda rights.  Soon thereafter, the FBI announced that he had not been read his rights, and that in fact they would not do so until after an elite interrogation team questioned him under the “public safety” exception to Miranda as stated by the Supreme Court in the 1984 decision New York v. Quarles (467 U.S. 649).

So what is the “public safety” exception to Miranda?  The Court wrote in Quarles:

“We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.” (467 U. S. 658-59.)

The exception allows the police to question the suspect only on what may be considered an immediate threat to public safety or destruction of evidence.  In Quarles, the arresting officer only questioned the suspect as to the location of the gun used in the crime, and the Court allowed Quarles’ statement to be admitted at his trial.  467 U.S. 659-60. 

In Tsarnaev’s case, it would appear that the FBI would only be able to question him on where other bombs could be hidden, or whether he has any associates planning other attacks in the future.  However, when it comes to terrorism, the line as to what is an “imminent threat” of terrorism has been blurred by both the Bush and Obama administrations in the name of national security, so it could be up to the courts to determine if Miranda should be limited further.

It is also important to note that the Fifth Amendment does not discriminate by citizenship.  Even if Tsarnaev were not a U.S. citizen, he would enjoy the right against self-incrimination under the law, and thus would legally be entitled to receive Miranda warnings and request an attorney to be present when he is questioned further.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

The Law Defined: Physical Custody


"sticking together" by author

“sticking together” by author

In a previous post, we briefly discussed the two types of child custody (legal and physical).  Here, we will go into physical custody in-depth.

Physical custody is what it sounds like: the parent with whom the child resides.  This arrangement means that the child’s legal residence is with the parent whom the court has granted physical custody.  It also means that the custodial parent has the responsibility to care for the child’s immediate day-to-day needs, such as food, clothing, shelter, and entertainment.

Courts may grant sole or joint physical custody.  In sole custody situations, the non-custodial parent is entitled to visitation rights, which can be worked out between the parties or set by the judge based on the best interests of the child.  In a joint custody arrangement, the parents divide their time with the child more-or-less equally.

After the judge signs off on an agreement or rules on the merits, the custody arrangement is final unless there is a finding that a change in circumstances affecting the best interests of the child warrants a modification of the custody order.  All custody orders automatically expire when the child turns 18 (can be extended to age 19 or graduation from high school, whichever comes first).

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.