Visitation (Virginia)
“duckling pool’ by author
An essential element of any child custody arrangement is visitation for the non-custodial parent. Under the law, the parent who does not have physical custody is presumed to have visitation rights. There are no recorded cases of a judge completely denying the right of visitation.
Ideally, visitation arrangements are worked out between the parents and ratified by the judge. If the parties cannot agree, the judge will determine visitation based on what would be in the best interests of the child under the following guidelines in listed Va. Code § 20-124.3:
1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. 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;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.
While judges have never denied visitation rights, they do have the option of ordering supervised visitation if it is deemed necessary and in the best interests of the child.
Denial of visitation by the custodial parent is a violation of the custody order, and the non-custodial parent may petition the court to enforce it. On the other hand, failure to return the child at the designated time has more serious potential consequences. If the child is not returned within 48 hours, it may be considered an abduction. If the abducting parent stays in Virginia, it is a Class 1 misdemeanor, punishable by up to 12 months in jail and up to a $2,500 fine. If the abducting parent crosses state lines, it is a Class 6 felony, punishable by one to five years in imprisonment, or up to 12 months in jail and/or $2,500 fine.
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 || pyabut@prylaw.com
Presentation: Pendente Lite Orders in Virginia
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
Ore Tenus: The Divorce Hearing
“the original tweeters” by author
You have negotiated all of the support and child custody issues, divided all of your property to each spouse’s satisfaction, and filed all of the necessary paperwork with the court. You are now at the end of the process, which in Virginia is called the ore tenus hearing.
In Virginia, many uncontested divorces can now be completed without ever setting foot in a courtroom. However, there are situations where a hearing is necessary (for example, if the defendant spouse is absent and cannot be found). Assuming there are no issues to be decided, the plaintiff can request the hearing any time after the defendant answers the complaint.
At an ore tenus hearing, the judge listens to testimony from the party asking for divorce and his/her corroborating fact witness. These questions cover how long the parties have been living separate and apart without cohabitation and without interruption, whether there is intent to remain separate and apart, whether there are support/custody and property issues still in dispute, and if there is any hope for reconciliation.
If there are no issues in dispute, the hearing itself can tend to be less formal than the usual proceeding. The corroborating witness may be allowed to be present for the petitioner’s testimony, and the questions are routine. The entire proceeding usually lasts around 10 to 15 minutes, and when it is over and the judge signs the decree and the parties are officially divorced.
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
“Partial” Divorce in Virginia: “Bed and Board”
“birds on a vane” by author
In a previous post, I wrote that there is no such status as “legally separated” in Virginia. While this is true, you need to know that there is an intermediate status known as divorce a mensa et thoro, or “divorce from bed and board.”
There are two grounds for divorce from bed and board: cruelty and reasonable apprehension of bodily hurt, or willful desertion or abandonment. The effect of such a decree is separation of spouses and their respective property, but unlike absolute divorce neither party is allowed to remarry (Va. Code § 20-116).
The parties may seek an absolute divorce one year after date of separation.
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
Proving Intent to Divorce: Your Corroborating Witness
“Wood Duck, P.I.” by author
In the age of no-fault divorce, it is relatively easy to end a marriage if both sides consent and settle their issues before filing. But even if both spouses really, really, really want to split up, someone besides the separating parties must vouch for their intent to divorce under oath and in open court (note: Virginia allows for divorce by affidavit under certain circumstances; DC does not at this time).
Your corroborating witness can be anyone you know — a relative, friend, colleague. The court requires the witness to answer a series of questions demonstrating his/her personal knowledge of the facts and circumstances surrounding the plaintiff’s separation from his/her spouse and whether the couple has remained separate and apart throughout the required time prior to filing the divorce action.
Virginia’s special statewide rules allow both the plaintiff and corroborating witness to answer their questions by written notarized affidavit if there are no outstanding issues to be determined by a judge.
The following are sample witness questions taken from a divorce guide provided by the Fairfax County Circuit Court:
1. State your full name and address please?
2. Are you acquainted with the Plaintiff in this action?
3. What is your relationship?
4. How long have you known him/her?
5. Does the Plaintiff currently reside at (ADDRESS)?
6. For at least six months prior to filing the Complaint for Divorce, please state all addresses where the Plaintiff has resided. (Note: if it is the other party upon whom jurisdiction is grounded, then ask this question regarding the residency and domicile of the other party.)
7. So for at least six months prior to the filing of the Complaint for Divorce on (DATE), was he/she a bona fide resident and domiciliary of the Commonwealth of Virginia? (Note: if it is the other party upon whom jurisdiction is grounded, then ask this question regarding the residency and domicile of the other party.)
8. Is the Plaintiff currently married to (spouse’s name)?
9. Have you met the Defendant? Would you know him/her by sight?
10. Are both Mr. and Mrs. (NAME) over the age of eighteen?
11. Have either of them been active duty members of the Armed Forces of the United States or its allies at any time during the pendency of this suit?
12. Is it your understanding that they were married on (Date) in (Place)?
13. Were there any children born or adopted of their marriage? (IF YES, ASK NAMES AND AGES)
14. Did they separate on or about (Date)?
15. At the time of the separation, was it the intent of at least one of them that it would be a permanent separation that would ultimately lead to a divorce?
16. Has that intent continued on the part of at least one of them up until the present date?
17. How did you become aware of the separation?
18. Have you had an opportunity to visit in the Plaintiff’s or Defendant’s home since (Date of Separation)?
19. How often have you visited with the Plaintiff/Defendant in his/her home?
20. In any of your visits to his/her home, have you ever seen anything which would indicate to you that his/her spouse was continuing to live there after (Date of Separation)?
21. How frequently do you speak with the Plaintiff/Defendant either by telephone or in person?
22. In any of your conversations with him/her, have you ever heard anything which would indicate to you that after the (Date of Separation), he/she had reconciled with his wife/her husband and resumed living together with her/him?
23. Do you believe you have a close enough relationship with the Plaintiff/Defendant that if he/she had reconciled with his wife/her husband and resumed living with her/him, that you would have been aware of that fact?
24. So, to your knowledge, have they lived separate and apart without any cohabitation and without interruption from (Date of Separation) up to the present date?
25. Do you believe there is any hope or probability of a reconciliation between them?
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
Marriage Equality Arrives in Rhode Island
“capitol couple” by author
Today, Rhode Island Gov. Lincoln Chafee (I) signed two bills legalizing same-sex marriage on the steps of the state capitol in Providence. With that stroke of a pen, Rhode Island becomes the tenth state (plus DC) to accept marriage equality under the law. Same-sex couples will be able to marry beginning on August 1, while those who already are joined under the old civil union statute will be able to change their status to married.
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
What can be included in spousal support?
“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
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
The Law Defined: Physical Custody
“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).
Marriage Equality Update: Illinois and Rhode Island
“capitol couple” by author
In the fight for marriage equality, two states have bills moving through their legislatures and are poised to to be the next jurisdictions to approve same-sex marriage this year, pending court challenges.
Illinois: The state Senate approved a marriage equality bill 34-21 on February 14, setting the stage for a vote in the Illinois House, which has not yet set a date for taking up the legislation. Lobbying on both sides is well underway, with sports legends lending their support and the GOP party chairman feeling pressure for backing the bill. Gov. Pat Quinn (D) has promised to sign the bill if it passes the legislature.
Rhode Island: A recent poll found 60% supporting same-sex marriage as a bill makes its way through the legislature. In January, the state House overwhelmingly passed the measure 51-19, sending it to the Senate, which will take it up this spring. The vote there is expected to be razor-thin, and fast and furious lobbying is ongoing. Gov. Lincoln Chafee (I) is a vocal supporter of marriage equality.
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