Divorces among couples over the age of 50 are on the rise. A recent CNN article told the story of Margie and Dick – a Virginia couple who, after 37 years of marriage, decided to get divorced.  Margie and Dick, along with their respective lawyers, worked together to reach a divorce agreement that provided for each of their financial needs and allowed them to remain friends.  While there are many different factors that contribute to divorce, one thing is becoming increasingly clear: Margie and Dick are not alone.

A study conducted by Bowling Green State University revealed that baby boomers are seeking divorces at an unprecedented rate. According to the study, the rate of divorce among adults over the age of 50 doubled between the years 1990 and 2010.  In the year 2010 alone, adults over the age of 50 accounted for nearly one in four divorces.

No matter the circumstances surrounding a divorce, it is imperative that you consider your financial security.  One of the most important aspects during a divorce is how to divide assets between the spouses. In many cases, this will include a division of retirement benefits that accrued during the marriage.

Dividing Retirement Benefits Under Virginia Law

Upon divorce, Virginia courts first determine whether the couple’s assets are separate property or marital property. Property that is considered separate is not subject to division. This can include assets acquired prior to the marriage, and gifts or bequests to a one spouse during the marriage.

Assets that are considered marital property are then divided between the parties. Under  Code of Virginia § 20-107.3, the portions of pensions, retirement plans, and deferred compensation plans that are acquired during the marriage are considered marital property. Thus, it is likely that all types of retirement benefits that you acquire during your marriage are subject to division by the courts.

How Do Courts Decide Who Gets What?

There is no strict formula used to determine how to divide assets – such as retirement benefits – among spouses. Rather, Code of Virginia directs courts to consider several factors when dividing marital property. These factors include:

• The duration of the marriage
  
• The ages and health conditions of the parties
  
• Each party's’ contribution to the well-being of the family – both monetary and non-monetary, such as raising children
  
• The circumstances contributing to the divorce, such as adultery, abuse, or abandonment
  
• The debts and liabilities of each party
  

If you are considering a divorce, it is important to remember that the process and subsequent division of assets do not have to be a contentious experience. Despite the portrayal of divorces in the media and popular culture, many spouses reach amicable agreements. Indeed, this was the case with Margie and Dick. Margie and Dick each retained their own lawyer, and, with the help of a third-party, reached an outcome that not only provided for both of their needs, but also allowed them to be friends to this day.

Garrett Law Group, PLC can help you navigate the complex divorce process and reach the outcome that you desire. If you would like more information about divorce and the potential financial consequences, please contact one of our experienced attorneys for a confidential consultation.

Divorce law has special exemptions when it involves people who are in the military. In cases of military divorce, matters like alimony and child custody are examined in a different light to make sure that the proceedings won’t negatively affect an individual’s ability to continue to serve their country. Each state has its own laws when it comes to handling military divorce. For those in the state of Virginia, the laws pertaining to that area are explored in depth here.

Active Duty Protection

One of the big hurdles faced by military spouses is the chance that they might be served with divorce papers while deployed out of the country. In some states, that places the spouses in default for the case which may mean that they return home to find that they have been divorced without their knowledge. Virginia has laws set up to protect military personnel from this situation. If a service member is on active duty, then the proceedings can be postponed for up to 60 days. This gives ample time for all parties to be informed, which means that there won't be a scramble to handle the many complicated legal aspects of a military divorce case.

Serving Papers to a Military Spouse

For military divorce proceedings to begin, a spouse serving in the military needs to be served their paperwork in person. This can sometimes lead to a delay, especially if the spouse is currently deployed. The goal behind this law is to make sure that delicate matters like alimony and child custody are not rushed into but are rather tackled from all different angles. These Virginia laws are all focused on handling cases where there is something to be contested in the proceedings. In the case where a couple wants to be mutually divorced, the serving of papers can be avoided. In that case, the spouse who is serving in the military only needs to sign a waiver to inform the courts that the divorce is mutual and uncontested.

Who Qualifies for a Military Divorce?

In order to gain a military divorce in the state of Virginia, at least one of the spouses involved needs to be a current resident of Virginia or somebody in active service who is deployed to Virginia. There are certain other restrictions designed to protect the serving spouse as well. For example, a member of the military doesn't have to pay any retirement funds to the other spouse unless the marriage has lasted at least 10 years while the person in question was serving in the armed forces. Child support and alimony are also not allowed to exceed more than 60% of the military personnel's allotted pay. Aside from these guidelines, the typical laws of the state of Virginia apply.

Virginia residents are lucky enough to have a state that makes sure that military divorce proceedings are equal and fair to both parties. Most of the state's laws remain the same, but the exemptions above are designed to make sure that nobody can take advantage of a soldier's service status to gain leverage during proceedings.

The End of a Marriage

The end of a marriage and the beginning of a divorce may be difficult for many people to comprehend. The end of a relationship can be very painful, and the thought of dividing property, parental rights, determining child support and separating lives in general, can be daunting for both soon-to-be ex-spouses. However, if both spouses can agree on things like who will get the house, who will take the kids, and who will pay which debts, a divorce can be somewhat amicable, less complicated, and cheaper.

What is an Uncontested Divorce?

Under Virginia law, parties who agree to the terms of a divorce may petition the court for an uncontested divorce. As discussed by the Virginia Beach Circuit Court, an uncontested divorce is one in which all of the issues have already been agreed to by each spouse. Uncontested divorces and divorces in general, are governed by Title 20 of the Code of Virginia. The rules of the local jurisdiction in which the divorce is being filed, and the Title 20 rules, govern the procedure of an uncontested divorce.

Requirements for an Uncontested Divorce in Virginia Beach

Under Title 20, and the Virginia Beach Circuit Court Rules, in order for two spouses to be eligible for an uncontested divorce, they must first absolutely agree on each term of the divorce. This means that both spouses agree about issues such as property division, division of debts, child support, child visitation, and other such issues. Secondly, the divorce must be a no-fault divorce, which means that the grounds for divorce are either separation for the statutory period (one year), or a motion will be filed for a no-fault divorce. Third, the parties must have written, signed agreements reflecting child support, spousal support, and child visitation, unless these items are not requested by either spouse. Uncontested divorces are heard by a judge, commissioner, or, in some cases, a party may have a case heard in support of the divorce by deposition or affidavit.

Uncontested Divorces: Do I need a Lawyer?

Uncontested divorce is usually less complicated and costly than a divorce that goes to trial. There are, however, many areas of an uncontested divorce that require skill and expertise in the area of law and statutory interpretation. For example, in order for an uncontested divorce to be valid (and for a judge to sign the final decree), issues such as jurisdiction, notice, timing, and filing procedures must be followed by the book. Additionally, the final decree will embody the rights and responsibilities of each party after the marriage, and if each term is not carefully planned, one spouse may lose his or her rights, or property.  This is especially important in the area of child support, child visitation, and spousal support. If each spouse does not know his or her rights, he or she may sign away extremely important rights to see the children or get support for their care.

If you are interested in filing for an uncontested divorce, you should seek out the assistance of an experienced family law attorney. An uncontested divorce is generally cheaper and easier than a contested divorce. One tip is to prepare all of your documents for the visit with your lawyer. Contact Garrett Law Group, PLC today for a confidential consultation.

The end of a marriage is frequently a sad, painful and difficult time. For military spouses, the complexities of military divorce are compounded due to the intricate details and difficult fact patterns surrounding military life and military pay and benefits. Military divorces, however, do not have to be any more painful and daunting than civilian divorces. It is important for military spouses to understand some of the basics of military divorce in order to protect their rights and transition out of the marriage as smoothly as possible.

As many stories on the matter often discuss, there are three items that repeatedly come up in military divorces: kids, pensions and spousal support. Military lifestyle and the way military personnel are paid and receive benefits all play into each of these issues. For spouses navigating a military divorce, each one of these issues will need to be discussed and decided.

The Children

If a military marriage produced children, a parenting plan will have to be established, as well as child custody and child support. In many military families pre-divorce, one spouse has taken care of the children while the other has been deployed for duty. In these cases, especially if the military spouse is still on active duty, and is often deployed, child custody may not be an issue because a judge would likely award the stay-at-home spouse either primary or sole custody.

Additionally, the issues of child support in these cases may be more readily determinable considering that one spouse will primarily care for the children and need funds from the other to do so. It is important to note that a judge would always look to the best interests of the children in signing final orders for a parenting plan and child support. Not considered is the best interests of either spouse, or what she or he simply thinks is fair.

If the child is located overseas, or the spouse has been deployed for a lengthy amount of time, additional issues may arise in establishing child support, custody, and a parenting plan. For example, if a child has resided in Germany habitually, then a German court would have jurisdiction over the child, not a Virginia Court, even if the child is a U.S. citizen and born in Virginia.

Spousal Support

The second item that often comes up in military divorces is spousal support. In military marriages, one spouse often stays at home while the other spouse is either deployed or is training or studying. Frequent domestic or international moves, and the grueling schedule of a military spouse, also contribute to one spouse’s unemployment status. For this reason, a military spouse may be required to pay spousal support until the other spouse can finish his or her education and become gainfully employed.

Pensions

Lastly, and perhaps trickiest, is the issue of the military pension. Pensions vary in value, but it is important to understand exactly how much is at stake when decided how it will factor into property division. Service members may have a Roth IRA and Thrift Savings Plan that will need to be taken into consideration during the divorce, as well as a military retirement pension. Under the Uniform Services Former Spouses Protection Act, military pensions are treated as marital property, to which non-military spouses are entitled to one-half if the marriage lasted for 10 years. Of course, it is important to note that the pension plan, like most things in a divorce, is up for negotiation between the parties.

Kids, spousal support and pensions, while frequently flagged, are by no means the only issues to be worked out in a military divorce. If you are planning to get a military divorce, you should seek out the assistance of an experienced military divorce attorney, who can fully help you understand your rights and what you are entitled to. Contact the experienced attorneys at Garrett Law Group, PLC today for a confidential consultation.

Many people are familiar with the stories of men and women falling in love while one is incarcerated. Incredibly, there are websites that exist for the sole purpose of facilitating relationships between prisoners and those on the outside. Yet it is far more common for relationships to end – rather than to begin – when someone goes to jail. A felony conviction and a lengthy jail sentence can be devastating to both the person convicted and that person’s spouse. When considering a divorce in Virginia due to an incarceration, there are several things you should know.

The Initial Requirement for a Divorce in Virginia

In order to get a divorce in Virginia, one must first meet Virginia’s residency requirements. One spouse must be an actual resident and domiciliary of the state for at least six months prior to the commencement of divorce proceedings. Given the large presence of servicemen in Virginia, the law presumes that the members of the armed services meet this requirement if stationed in the Commonwealth for at least six months. Once one party meets this requirement, the rest of the divorce process will depend on the grounds on which a party is seeking a divorce.

Incarceration as Grounds for Divorce in Virginia

Normally, Virginia mandates a year-long waiting period prior to granting a divorce. Incarceration, however, is an exception to the waiting period. Under the Virginia Code, one can seek an immediate divorce if the plaintiff – the person seeking the divorce – can establish the following requirements:

• Either of the parties to the marriage has been convicted of a felony;
  
• This party was sentenced to confinement for more than one year, and;
  
• Cohabitation has not been resumed after knowledge of such confinement.

The grounds for the divorce – in this case the felony conviction – must have occurred after the parties were married. Likewise, the felon must actually be incarcerated for some period of time for the crime committed. If the felon was convicted, but immediately given probation instead of jail time, neither spouse can use incarceration as grounds for a divorce.

A divorce when one spouse is incarcerated at the time of the divorce requires an additional step. A court will not grant a divorce until it appoints an attorney for the incarcerated spouse. Known as a guardian ad litem, this attorney represents the prisoner’s interest in the divorce. Normally the spouse seeking the divorce will be required to pay for the guardian ad litem; however, this requirement will be waived if the crime involved physical injury, sexual assault, or sexual abuse against the spouse, child, or stepchild.

Many assume that spouses of inmates initiate divorce proceedings, but this is not always the case. Some inmates want a clean break during their incarceration or a fresh start upon release. If you are incarcerated and want a divorce, begin by speaking with your spouse. Because of your limited access to information and the outside world, an uncontested divorce – one in which you both agree to the divorce and its terms – will be much more simple than a contested divorce. Regardless of whether you and your spouse agree to the divorce, it is important to consult with an attorney.

Divorcing in Virginia can be lengthy and expensive. Likewise, the courts have broad discretion in awarding child custody, and child and spousal support. If you are considering a divorce in Virginia, our experienced family law attorneys can help you navigate this complex process and get for you what you deserve.

On October 2nd, the federal government shutdown as a result of Congress’ inability to pass a federal budget. National parks closed, federal agencies shut down, and roughly 800,000 federal employees were told to stay home. Yet while the paychecks have stopped arriving, the bills have not. One such cost for which many furloughed employees must account is child support payments. But should a parent be required to continue to meet his or her child support obligations if they’re no longer receiving income? What happens when the other parent is promoted? If a parent wishes to decrease his or her child support obligation – or increase the other parent’s obligation – he or she must go to court and seek a modification.

During a divorce in Virginia, a judge determines what the non-custodial parent is obligated to contribute in order for the other parent to provide for the child. The monetary amount is determined in proportion to a parent’s gross monthly income. The court may also consider a variety of other factors, including a parent’s financial obligation to other family members and whether the child has any special medical needs.

When Can a Child Support Order be Modified?

If a parent in Virginia wants to change a child support order, either parent can seek a modification of the child support order in court. The parent will be required to show that a change in circumstances occurred that makes the obligation unfair. Since the original order is normally proportional to a parent’s monthly income, either a significant increase or decrease in income can serve as a basis to modify an existing child support order.

Suppose, for example, a father in Virginia makes $4,000 a month as a landscaper and pays $553 a month in child support payments. Several years later, the father starts a successful business selling landscaping equipment to the National Park Service. He now makes $10,000 a month, yet still only pays $553 a month in child support. This significant change in income would likely provide a basis for the mother to seek a modification of the child support order and increase the father’s child support obligation.

A decrease in income can also provide a basis for modification. Let’s suppose that the judge in the example above grants that mother’s motion for a modification of a child support order. The father is now required to pay the mother $1,014 a month. The father continues to pay this new amount until – on October 2, 2013 – the federal government closes. Unable to sell his landscaping equipment to the National Park Service and pay his employees, the father closes his business and returns to his landscaping job and monthly income of $4,000. This significant decrease in his monthly income would likely constitute a change in circumstances sufficient to support an order for a modification of child support. However, if one parent quits, refuses to take another job, or intentionally takes a lower-paying job, the court may not agree to modify the existing child support order.

If you have experienced a change in circumstances and would like to modify your child support obligation, or the obligation of the other parent, contact one of our experienced family law attorneys. Together, we will work to achieve the modification that you desire.

In many divorces, the most contentious disputes arise over child custody and child visitation. These issues are often close to the heart and fights can erupt that no amount of counseling, advice, and negotiation can settle. While most parents want the best for their children, during a divorce parents may lose sight of harmful behavior that they display in an effort to “win” custody of a child, or to scorn the other parent for his or her role in the divorce proceedings. A vicious and destructive pattern of behavior can arise from the combination of heavy emotions, serious frustrations, and control.  This pattern of behavior is called parental alienation syndrome, and it should be stopped as soon as it is detected.

What is Parental Alienation?

Parental alienation is a behavior of one parent that involves manipulating and bullying the child so that he or she ultimately “picks sides” with that parent over the other parent. It is a set of behaviors that are both harmful and damaging to a child, and can eventually destroy the child’s bond with the parent that the alienating parent is targeting. Parental alienation is often used as a tactic by the alienating parent during a divorce or separation in order to harm the other parent and turn the child against the other parent. Parental alienation can include these behaviors by the alienating parent:

·         Telling the child that the other parent does not love the child;

·         Telling the child that the other parent does not want to spend time with the child;

·         Hiding communication from the other parent from the child (i.e. letters, telephone calls, etc.);

·         Acting hostile towards the child if the child does not want to spend time with the alienating parent;  and

·         Empowering the children to act as they please.

What can a Court do about Parental Alienation?

According to a lead parental alienation expert, there are many things that courts have the power to do when it comes to parental alienation during a divorce or separation. Courts are in the best position to stop parental alienation when determining the issues of custody, child support and visitation matters. Courts can prevent one parent from using procedural tactics to promote delay and further alienation, for example denying continuances in high-risk parental alienation cases. Courts can also order children and parents in therapy, and can appoint a Guardian Ad Litem to oversee the child and report to the court.

In the Virginia case Canedo v. Canedo, the Court of Appeals of Virginia ruled that a mother who was using gross tactics—including manipulating the child into believing that her father had sexually abused her-- to alienate the child from the child’s father was to have supervised visitations with the mother.  This is one example of how the courts can intervene in serious cases of parental alienation.

Parental alienation is a serious issue that can damage a child emotionally and mentally, and can break the bond between a child and the targeted parent. If you are seeking to get a divorce in Virginia, you should immediately get in touch with an experienced family law and divorce attorney. Contact Garrett Law Group, PLC, today for a confidential consultation.

Child custody disputes can be some of the most contentious, bitter, and difficult legal battles in family law. The issue of child custody is deeply personal and can touch on a number of additional issues, such as whether one parent is fit to care for the child on his or her own, whether the child will be safe in the home of one parent, and, in some cases, whether there are other factors, such as sexual abuse, that must be addressed by the court. In Virginia, child custody issues are generally determined by the family law court. However, allegations of sexual abuse by one parent against another may bring the issue of sexual abuse before other courts. It is important for Virginia parents to know the basics of how child custody issues are resolved, and how an allegation of sexual abuse may affect their custody rights.

Child Custody Disputes in Virginia

In general, under Virginia law both parents have equal custody rights of a child unless there is a child custody order that mandates otherwise. Whether the parents of the child have been married or not, the general rule is that both parents should have equal access to the child, unless one parent files for a child custody order.

When one parent files for a child custody order, the court will look to many different factors in determining the final child custody order. The factors are meant to guide the court in determining the best interests of the child. Under Virginia law, the wants or needs of the parents are not meant to guide the court in determining child custody. Only the best interests of the child are a matter for the court to consider.

Code of Virginia 20-124.3 lists the factors that the court must consider. These factors include:

• The relationship between the parent and the child;
• The age and physical and mental condition of the child;
• The age and physical and mental condition of each parent;
• The role that each parent has played in the child’s life, and will play in the child’s life in the future;
• The needs of the child, including the need to have relationships with other siblings, peers and other extended family members.

Again, these factors, and many others, will determine custody or visitations arrangements between the parents.

Child Custody and Sexual Abuse

Another factor that the court will consider in determining the best interests of the child under Code of Virginia 20-124.3 is whether there is a history of family abuse or sexual abuse. At the outset, if one parent makes allegations of sexual abuse against another parent, serious restrictions on custody or visitation may be ordered by the court after the child custody hearing.

Additionally, if one parent makes sexual abuse allegations against another parent, criminal charges against the parent may be filed. This means that the issue of the alleged sexual abuse will be before both the family law court and the criminal court.

Thirdly, if one parent alleges sexual abuse by another parent, Child Protective Services may become involved. Child Protective Services may file a petition in the juvenile court if it believes that the child is now unsafe in the home.

Allegations of sexual abuse by one parent against another can severely affect the accused parent’s custody and visitation rights with the child, and may subject the parent to criminal prosecution. If you have been accused of sexually abusing your child during a pending child custody dispute, or if you have been criminally charged for sexual abuse of a child, you should immediately seek out an attorney. Contact Garrett Law Group, PLC, today for a confidential consultation.

About Anneshia Miller Grant

Anneshia Miller Grant is a family law attorney in the Virginia Beach office of Garrett Law Group, PLC. She has years of experience representing clients in the courts of Virginia Beach, Norfolk and surrounding areas.

Under Virginia law, it is required that spouses live separate and apart for a period of either six or twelve months(depending on whether there are minor children) prior to finalizing a divorce. Maintaining separate households for this time period can be a strain on finances for many couples, particularly in today’s economy. Fortunately, the law does not require establishing separate residences, only that the parties live “separate and apart”.

How To Establish Separation In The Same House

There is no rule in Virginia divorce law that must be followed to live separate and apart under the same roof. The burden of proof is on the party (or parties) seeking the divorce to present evidence to the court which indicate the separation. This can be proved by any number of facts, but below are some ways that may be helpful:

• Sleep in separate bedrooms, or if only one bedroom, have one party sleep on the couch. Time sharing the bed is permitted, so long as the bed is not shared together. Do not eat together as a couple.
• Do not engage in any romantic or sexually intimate activities. Stop wearing wedding rings, no gift giving, no hand holding, no kissing, and no intercourse.
• Perform your own household chores and do you own shopping. Cook and clean for yourself; do your own laundry.
• Separate your finances. Open separate checking accounts. If you have joint bills, such as a mortgage, send two separate individual checks. If only one party has an income, write a monthly or weekly check to the other party for them to deposit in their own personal checking account.
• Do not go to social functions as a couple; if you attend the same church, drive separately.
• Tell your friends and family about the separate living arrangements. Have them stop by from time to time to observe the separation.

Having minor children, particularly small children who may not understand, can complicate matters somewhat. It is alright to have occasional meals together, especially for holidays, their birthdays and special occasions, for the benefit of the children. You may attend meetings together with teachers, doctors and counselors, and also attend your children’s social events, like piano recitals or baseball games, but you should take separate transportation; and if possible, do not sit together.