Nicole Fox McCabe, Attorney


QUICK FACTS ON THE LAW
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DIVORCE AND CHILD CUSTODY
Divorce – Fault and No-Fault Grounds
Separation
Custody
Child Support
Spousal Support
Property Division
Guardian ad litem

OUTSIDE RESOURCES

DIVORCE AND CHILD CUSTODY

Divorce – Fault and No-Fault Grounds
There are two classifications of divorce in the Commonwealth of Virginia.  A “fault-based” divorce alleges that one of the parties is at “fault” for causing the breakdown in the marriage.  Examples of grounds for fault are: adultery, desertion, mental cruelty and physical abuse.  Fault based divorces tend to be much more costly than “no-fault” based divorces because the parties spend much more time and money in attorneys fees preparing for litigation before the Judge.  A “no-fault” divorce is based on the “irreconcilable differences of the parties”.  Although these divorces are usually cheaper than fault divorces, there is a statutory separation period required of 12 months (six months if there are no children but the parties must have entered into a Separation Agreement) before pleadings may be filed to initiate the divorce with the Court.  If a party desires to resume use of her maiden or former name, this can be done through the divorce pursuant to Virginia Code 20-121.4.    

Separation
Once married parties have decided to separate and live in two separate residences, it is strongly recommended that they enter into a Property Settlement and Separation Agreement.  This is not a contract for divorce, rather, a contract that the parties sign that provides for the resolution of marital issues, such as custody of the children, child support, spousal support and the division of the marital property.   Entering into a Property Settlement and Separation Agreement can save the parties’ significant legal fees.   If the parties do not have any children of the marriage, the statutory waiting period of 12 months is reduced to six months provided that a separation agreement has been entered into by the parties.   Property Settlement Agreements are filed with the Court once the divorce has been filed and pursuant to Va. Code 20-109.1, the Court is requested to affirm and incorporate that agreement into the Final Decree of Divorce.  Thus, the agreement which was initially only a contract between the parties, then becomes a Court order.

Custody
When parties come to the realization that the marriage is over, regardless of the reason for the breakdown, the primary concern should be resolving the custody of the children, if there are any.  There are also circumstances where children are born outside of wedlock and custody requires determination between the parents.  Because no one understands the needs of a child like his or her parents, ideally this decision should be made based on the agreement of the parents rather than pursuant to a Judge’s order.  To assist in the determination of custody, the parents may request, or sometimes a court will order, that a guardian ad litem be appointed to represent the best interests of the children. Under Virginia Code 20-124.1, there are two categories of custody that must be determined.  First is legal custody.  Legal custody grants the parents the legal right to make major decisions affecting the children.  Absent circumstances that would dictate otherwise, generally parents share joint legal custody.   This requires both parents to consult with each other on all major decisions concerning the children.  If the Courts find evidence which supports the fact that the parents are unable to share this responsibility, it may be appropriate to order sole legal custody.  Regardless of the custodial situation, Virginia Code 20-124.6 states that unless good cause is shown otherwise and with some exceptions, neither parent shall be denied access to the academic and medical records of the children.  The second category of custody is physical custody.   There are situations where it may be appropriate for one parent to have physical custody while the other parent exercises a set visitation schedule with the child/children.  In other circumstances, it may be appropriate for the parties to share physical custody.  The specific arrangement of time that the children spend with each parent should be based on the best interests and needs of the children and the ability of each parent to serve those needs.  Parents must also determine what holiday and summer schedule would work best for their children.  If the parties are unable to agree on a custody arrangement, the Court will make the determination concerning the best interests of the children after having considered specific factors listed under Virginia Code 20-124.3.    

Child support
Once the decision regarding custody has been made, the parties must then determine child support. Child support is calculated based on guidelines pursuant to Virginia Code 20-108.2.   The guidelines use the income of both parents and incorporate the costs for work related day care expenses and for health insurance coverage of the children.  If both parents have at least 90 days with the children, the support is calculated based on a shared custody guideline.  In order to use this guideline, the exact number of days that the non-custodial parent has the children must be calculated.   Although child support calculation is fairly straight forward, there is often disagreement on income.  If one parent is unemployed or voluntarily underemployed, it may be appropriate for the Court to impute income.   Although the guidelines state a presumptive amount of child support, that amount can be deviated from if the circumstances support such a deviation.  Imputation of income is one such deviation.

Spousal Support
The court may use a formula for calculating spousal support on a temporary basis while the divorce action is pending, (known as “pendente lite” support)  however, in order for spousal support to be awarded pursuant to a Final Decree of Divorce, the Court is required to consider factors under Virginia Code 20-107.1.  The Court weighs the evidence presented pursuant to each of these factors to make the determination if any award at all is appropriate. Each party’s income and expenses, the duration of the marriage and the contributions that both parties made to the marriage are a few of the factors considered by the Court.   If spousal support is ordered, by statute (Virginia Code 20-109)  it will cease to be paid upon the death of either party, upon the remarriage of the payee spouse or if the payee spouse cohabitates in a relationship analogous to marriage for a period of one year.   

Property Division
In the event that there are no children, the primary consideration of parties’ as they undergo a divorce is usually the distribution of the marital property.   Property that is brought into the marriage by a party is considered to be that party’s “separate property” and is not subject to distribution by the Court. Similarly, property that is acquired during the marriage but that is purchased strictly by separate funds or that is inherited remains separate property unless it has been “co-mingled” into marital property. All other property acquired during the marriage is considered to be “marital property” and the Court will engage in a process known as “equitable distribution” to divide the property between the parties.  Equitable distribution is performed pursuant to the dictates of Virginia Code 20-107.3.  Among other factors considered by the Court under 20-107.3 (E),   the Court will consider the contributions of the parties, and whether or not there was fault involved in the breakdown of the marriage. If a party is found to be in fault for the breakdown of the marriage, the Court may provide an award of less than 50% to that party through the process of equitable distribution.     When dividing up the marital property, in addition to personal and real property, the Court will also include other property such as life insurance, stocks, bonds and retirement funds.   In determining value, the Court will usually consider the value of the property on the date of the marriage and the value of the property on the date of separation.

Guardian ad litem
Virginia Code 16.1-266 provides for the appointment of a discreet and competent attorney to represent the best interests of minors and other individuals deemed to be incapacitated.  Guardians ad litem are appointed by the Court, and sometimes at the request of the parties, to represent the interests of the minor children in custody proceedings and divorce proceedings where custody is at issue.   In order to serve as a guardian ad litem, the attorney must receive special training and be certified by the Commonwealth of Virginia. The Guardian ad litem must also maintain annual hours of continued legal education.  The Code is very specific in outlining the role and responsibilities of the guardian ad litem (GAL), which include, at a minimum, to meet face to face with the child prior to the proceeding and to conduct an independent investigation on the facts of the case.  The guardian ad litem is expected to make a recommendation to the Court as to what custodial arrangement will best serve the childrens’ interests.   While the Court considers the recommendation of the guardian ad litem, it is not required to follow it.  Guardians ad litem are required to be appointed in emancipation proceedings, adoptions and abuse and neglect proceedings.    At the Juvenile Court level, the GAL is appointed by the Court and the GAL is paid by the Commonwealth of Virginia, although those costs may later be assessed to the parties.  In a divorce proceeding at the Circuit Court level however, the GAL is brought into the proceeding by request of the parties rather than by statute, and accordingly, the parties are responsible for paying the GAL directly.

CIVIL MATTERS

Landlord/ Tenant
The Virginia Residential Landlord Tenant Act, Virginia Code 55-248.2,  is very specific on the duties and responsibilities of the landlords and tenants.  Once a tenant is late in rent, the landlord must send a notice to the tenant, known as a Pay or Quit Notice, advising the tenant of the money that is due.  That notice must also advise the tenant that any monies paid towards the rent owed will be accepted “with reservation” which means that, even if the tenant pays the past due rent, the landlord may still go forward with legal proceedings to have the tenant removed.  If a Landlord fails to maintain the property in a habitable condition, the tenant’s recourse is to file a Tenant’s Assertion with the Court.  The Tenant then pays rent into escrow through the Court rather than to the Landlord directly.  The legal action to remove a tenant from property is called an Unlawful Detainer.  All of these actions are filed in the General District Court of the county where the property is located.  Unlawful detainers may be filed for unpaid rent and/or for lease violations.  Once the landlord receives possession of the property, the defendant has 10 days in which to file an appeal to the Circuit Court.   Once the 10 days have passed, the Plaintiff may file a Writ of Possession requesting that the Sheriff’s office carry through with the eviction proceeding.  In order to appeal the case to the Circuit Court, the tenant will be required to post a bond in amount of the unpaid rent.

Warrants in Debt / Motion for Judgment
When Plaintiffs are suing for a money judgment, the proper legal action is either a Warrant in Debt or a Motion for Judgment.  A Warrant in Debt is filed in the General District Court and the amount sued for may not exceed $15,000 jurisdictional limit of the  Court.  Amounts sued for that are less than $5000 may be filed in Small Claims Courts in those jurisdictions that have implemented such courts.  Attorneys are not permitted to practice in Small Claims Courts. A request for a money judgment in excess of $15,000 must be filed by a Motion for Judgment in the Circuit Court.  If the amount sued for is between $5000 and $15,000, the General District Court and the Circuit Court have concurrent jurisdiction.  If a warrant in debt was initially filed in the General District Court, the case may be removed to the Circuit Court upon the Defendant’s request.  Regardless of where the suit was filed, if the Defendant fails to appear at the court date or fails to respond to the pleading in the statutory time period of twenty-one days, the plaintiff may receive a “default judgment”.  

CRIMINAL CASES

Juvenile Offenses
Juveniles are entitled to the same legal rights as adults in the legal system which includes the right to remain silent and the right to have an attorney represent them.  In some cases, upon being charged criminally, the Court will hold a detention hearing to determine if the juvenile should be permitted to return home pending the trial or if the juvenile should remain in detention pending the trial.  If the child is considered to be a threat to him or herself, or is at risk to causing harm to others, the juvenile will be detained in detention.  The primary focus of juvenile proceedings is to rehabilitate the juvenile, not to remove the juvenile from society.  If the juvenile is found guilty, often times the disposition (punishment phase) will occur on a different court date than the adjudication hearing (where juvenile is found guilty or not guilty).   If the charge is a felony offense, it may be appropriate for the Court to order a Social History pending the disposition.  This report will aid the Court in understanding the specific circumstances of why the offense was committed and what risks exist that the child will commit offenses in the future.  At disposition, the Court may sentence the child to detention and/or it may order the juvenile to attend various groups as well as perform community service.  If the offense involved damage to property, the disposition will also include the requirement that restitution be paid to the victim.  If a juvenile has no previous court involvement and is charged with an offense that is not considered to be serious or threatening, the juvenile may be eligible for a court diversion program.  This keeps the case out of the courtroom and avoids an adjudication of the offense providing that all requirements are met.   In some cases where a child has an extensive criminal history and is considered to be a continuing threat to society, a juvenile may be committed to the Department of Juvenile Justice.

Domestic Assault and Protective Orders:
An individual may be charged with domestic assault if there is an allegation of assault and/or battery on a family member or a member of the household. In the event of domestic disturbances, assault charges and emergency protective orders are often sought simultaneously.  These types of cases are also filed in the Juvenile and Domestic Relations District Courts. The emergency protective order, which is issued by the magistrate, is only good for seventy-two hours and then the requesting party must appear in Court and request that it be extended.  It is often the case that the Respondent is not aware that a Protective Order has been issued and therefore, he or she does not appear at the first court date.  In that instance, the Court will usually grant a Temporary Protective Order (providing there is sufficient evidence presented) and the parties will return to the Court in two weeks.   The Court will then make a determination if a Protective Order under Va. Code 16.1-279.1 should be entered.   The Court can enter the Protective Order for any amount of time up to two years and can include various restrictions in the protective order.  A Respondent is not permitted to carry firearms while a Protective Order is in place.


ESTATE AND ELDERLY LAW

Wills
A common misconception is that only wealthy people need wills.  The assumption that an individual who does not own a lot of property does not need a will is misguided.  To the contrary, a simple will is an inexpensive way to take care of your family once you have passed on.  The property of an individual who dies without a will passes intestate, which means that Virginia statute will dictate the distribution.   The distribution under the statute may not be consistent with the deceased’s wishes.  A Will can also relieve family members of the need to make difficult decisions concerning your funeral and burial arrangements.  If the desires of the deceased are clearly set out in a Will, then the burden on the family is lessened.  The Executor is simply given the task of following the directions as set out in the will.

Power of Attorney
A Power of Attorney is executed by a Principal and designates an Agent that has permission to handle the financial affairs of the Principal.  It is essential that the Power of Attorney is executed prior to the Principal becoming incapacitated.  Although the powers delegated in the Power of Attorney may vary, generally speaking the Agent has the authority to handle financial transactions, buy and sell property, pay taxes and file tax returns and represent the interests of the principal in front of the Social Security Administration.  It is a good idea for spouses to name each other as agents through a Power of Attorney.  A successor Power of Attorney may also be named in the event that the first person named is unable to assume the duties as agent.

Advanced Medical Directive
Although not every individual may be interested in having an Advanced Medical Directive, there are some to whom this document is extremely important.  An Advanced Medical Directive instructs the family and the doctors as to your wishes in the event that you are unable to make decisions for yourself concerning your health.  Whether or not your life shall continue if you require the usage of medical equipment to sustain your life is a decision that is too difficult for your family to make without your guidance.  Your Advanced Medical Directive will clearly state your desires and wishes in the event that you become incapacitated and unable to sustain life on your own. Your family will be reassured that they are making the right decision on your behalf.

Conservator and Guardianship
When an adult has become incapacitated and unable to tend to his or her own personal affairs, upon the appropriate petition under Va. Code 37.2-1009, the Court will appoint a Conservator to take care of the incapacitated’s financial affairs and a Guardian to make decisions on behalf of the incapacitated.  A guardian ad litem who is certified to represent incapacitated adults will have to be appointed and the Court will need to receive sufficient evidence of incapacitation.  Once appointed by the Court, both the Conservator and the Guardian (which may be the same person) will have to qualify for these roles in the Clerk’s office.  In most circumstances, a bond will have to be posted with the Court. Once qualified, both the Conservator and the Guardian are responsible for filing reports with the Commissioner of Accounts.

BUSINESS

Entity Formation
It is a good idea to create a legal business entity for small businesses in order to protect the individual’s personal assets from seizure in the event of liability.  By forming a corporation, an S-corporation or a Limited Liability Company, a small business can effectively protect the personal assets of the owners.   Although there are some negative tax consequences to forming a corporation, it may be appropriate to form an S-Corporation or a Professional Corporation both of which have the same tax advantages of a partnership or a soul proprietorship, yet also provide the liability protections of a regular corporation.   There are specific advantages and disadvantages of the different business entities and it is advised that one seek professional assistance to decide which entity is the right one for your business.   

Registered Agent
For purposes of legal service, all business entities registered with the State Corporation Commission in the Commonwealth of Virginia must have an individual designated as a Registered Agent. This individual will be served with all legal papers concerning the business entity and will receive notices from the State Corporation Commission. The Registered Agent should also make sure that all annual reports and annual dues are paid in a timely manner.   Although any officer or director of the business may be designated as the Registered Agent, it is most common that an attorney be designated to serve this role.  

EQUINE

Releases and Waivers
The Virginia Equine Liability Act under Virginia Code 3.2-6200-6203 is very specific regarding the language that must be included in releases and waivers signed by individuals who are participating in an equine activity.  It is common knowledge that the equine industry can be very dangerous and the risks of liability associated with an accident are high.   A release/waiver that does not have the mandated language is worthless.

Contractual Agreements
All individuals and businesses that are conducting equine transactions, whether they are buy-sell agreements, lease agreements, breeding contracts, or boarding contracts, should make sure that all provisions are contained in a written contract.   These contracts should very clearly state the intention of the parties and shall be signed by all necessary parties.  The use of contracts often avoids costly litigation in the event of a dispute because the legal rights and remedies of the parties are clear.

Personal Injury and Property Damage
Although they are arguably God’s most beautiful creatures, horses are to be respected and can be very dangerous animals.  In the event of injury to person or property, legal representation is a must in order to maximize recovery or to protect your assets.     


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Nicole Fox McCabe, Attorney | 505 East Main Street, Richmond VA 23219 | Phone 804-644-0371 | Fax 804-649-7824

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