Archive for November, 2009

What can I expect as a divorce property settlement?

Friday, November 6th, 2009

Virginia uses what is called ‘equitable distribution’ to divide marital property at the time of a divorce. “Equitable” means ‘fair’, not necessarily equal.

In most cases where there aren’t any strong compelling arguments, the division of marital property will probably be equal (or close to equal) because that is also fair. But there are individual situations that can make a difference.

When you are getting a divorce, everything that you and your spouse own is viewed as one of three categories.  It is either the Husband’s separate property, or the Wife’s separate property, or it is ‘marital property’.  While this sounds simple, it can get quite complicated.

In general, any property that you owned before you got married, obtained during the marriage by a gift or inheritance, or you obtained after your separation, will be termed your ’separate’ property and will remain the property of the separate owner.  (note that I said ‘in general’…It is very important to keep good records so that separate property can remain identified as separate.)

Anything else is termed ‘marital’ property. This ‘marital property’ is what most people fight about during a divorce.

It is also important to note that ‘property’ means anything of value and not just your house.  That means that things such as your stamp collection, any retirement benefits, bank accounts, copyrights or patents will be divided between you.

Code of Virginia section 20-107.3 is the statute that provides direction for the  property distribution. Paragraph E lists 11 criteria that the court uses when it makes the determination about how to divide marital property. As in many areas of the law, there is a ‘catch all’ criteria that allows the court to consider ‘Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.’

The best arrangement is for the parties to agree to a property settlement that they have negotiated themselves. It is quicker, cheaper, and probably closer to what each party really wants. But, if the parties cannot agree, the court will make a decision about the property division and the parties will be required to follow that court decision.

And the court’s decision will be ‘equitable’ based on all of the information that is available to the judge.

This is a very complicated area of the law that can seem deceptively simple.

Even if you have already come to an agreement with your spouse, it is always a good idea to have your own attorney review that agreement to make sure it contains everything that is needed legally to make sure the agreement can be enforced, and that your interests have been protected.  After all, a settlement agreement is really nothing more than a contract, and you would always want to have any other type of contract reviewed before signing it…..right?

How do I choose a guardian for my children?

Tuesday, November 3rd, 2009

One of the really difficult things any parent has to consider is “who will take care of  my children if I die?”

Of course, we all hope that we remain alive and competent and we are able to raise our children ourselves. But sometimes Life Happens and our children are left without us. This is going to be a tough time for the kids anyway. And if you haven’t recommended a guardian, there will be even more turmoil as the courts try to decide who should be the person to raise your children.

In most states, the natural (or adoptive) parents are the legal guardians. That means that even if you have full legal custody of your children after a divorce, if something happens to you, the other spouse will become the child’s default guardian. Maybe this is ok, but what about the situation where that other parent is also not available?

Then it is up to the Court to decide on a guardian.  It is much easier if you have nominated a guardian in your Will.  This will tell the Court that you have considered the problem and that you have decided who would be the next best parent for your children.

How do you choose?

You can make a list of the people that you will consider for this important role. (You might also make a list of people that you do NOT want to be guardians).

Then make a list of your own parenting style and what you think is important in your children’s lives. Do you want your children to attend the same church that you attend now? Do you want your children to be able to have a big yard to play in? Do you want your children to be with other children? Or perhaps you want your children to be the only children in the family? Do you want your children to learn how to cook? or work on cars? or be able to use the newest technology?

Then take the list of people on your first list and rank them according to the criteria on your second list.

The person on your list with the highest ranking number is probably the one you should choose.

What do you do then? You should contact your attorney to make sure that you have the correct legal documents to ensure that your choice is known.

And did you know that you can choose one person for the ‘personal’ care of your children and another person to be in charge of your children’s finances?

We all try to make sure our children are safe and that their needs are met when we’re around. We also need to make sure that their needs are met if something happens to us.

If you’d like to discuss this important aspect of parenting, contact the office at 757-234-4650 to set up an appointment!

Why do I need an ‘Advanced Directive’?

Sunday, November 1st, 2009

I hear this question a lot. Along with the question ‘What happens to my basic directive when I get an advanced directive?’ or “I didn’t even know I had a basic directive!”  Even I had some trouble with the terminology when I first heard it (before I became a lawyer). Then I looked more closely.

It isn’t an ‘advanced’ directive, it is an ‘advance’ directive. That’s right, ‘advance’ as in ‘before’. And just like you plan what to pack in advance of your vacation, you should plan what sorts of medical treatment you would want before you need it. After all, there is a good chance that when the time comes, you won’t be able to tell people yourself.

If you are on life support, you won’t be able to tell the doctor whether or not you want to be kept alive with machines doing all the work. You won’t be able to tell the doctor whether or not you want to be fed through a feeding tube when there is no chance of you ever waking up. And you won’t be able to tell the doctor that you want pain killers, even if that means that you might die a little sooner.

That’s what the ‘advance directive’ is all about.

Remember that case in Florida where the woman’s husband and her parents went to court fighting over whether or not she should be kept alive by mechanical means, even after her brain function had totally stopped? The people who loved her the most spent a lot of time (and a lot of money) fighting over what she would have wanted.

It would have been much easier on everyone if she had written an ‘advance directive’ to let people know what she really wanted.

It’s a nice thing to do for our loved ones. If we are in the position to need this directive, the people we love are probably already in a very emotional state. And that’s not a good time to have to make these decisions.

It is much better to make these decisions before the time comes. In Advance of when the decision is needed.

That way, you can be sure that everyone understands your wishes. There is no problem with how one person thought you might want to proceed, because you are telling them what you want. You are making sure that your wishes are heard.

Yes, I think everyone should have an advance directive to tell the people we love how we want them to proceed. It is so much easier for them to follow our wishes when we have taken the time and effort to make sure those wishes are in writing.