Archive for the ‘General Information’ Category

How the 2017 Tax Law Affects Spousal Support

Thursday, February 15th, 2018

By: Jeremy Forrest

You may be aware that Congress passed sweeping changes to the tax law in December 2017. The headlines for almost all news stories about the new law focused on reductions to both personal income tax rates and business income tax rates. Perhaps lost in the mix is an important change to the tax law that affects how spousal support payments are treated on an ex-spouse’s annual income tax return.

Under prior law, when an ex-spouse pays spousal support (“alimony”) to another ex-spouse under a divorce decree or separation agreement, the paying spouse can deduct those payments and the receiving spouse includes spousal support received as income. Congress made a complete reversal of this deduction rule in the 2017 Tax Bill. The new law provides that an ex-spouse paying spousal support cannot deduct spousal support payments from his or her tax return. Further, spousal support payments received are no longer considered income from the ex-spouse receiving those payments.

There are some important things to keep in mind about this change to the law. First and foremost, any existing divorce decree or separation agreement will remain subject to the old deduction rules. So if you are currently paying or receiving spousal support and those payments are going to continue into 2019 and beyond, those spousal support payments are subject to the old rules, where the paying spouse can deduct the payments on their income tax returns and the receiving spouse must include those payments as income received. Second, the new deduction rules take affect with any divorce decree or separation agreement that takes effect after December 31, 2018. Thus, any divorce decrees or separation agreements that take effect during the 2018 calendar year will be subject to the old rules. Lastly, because spousal support can be modified, if a spousal support order or agreement is subject to the old deduction rules, but gets modified after December 31, 2018, the modification will remain subject to the old deduction rules unless the order or agreement to modify “opts-in” to the new rules.

Contact us for more information

If you have questions about this, please contact the office of Beavers Law, P.C. at 757-234-4650 to schedule a consultation with one of our attorneys.  You can also visit us on the web at www.BeaversLaw.com.

What happens to my social media if something happens to me?

Tuesday, September 26th, 2017
This year, the Uniform Fiduciary Access to Digital Assets Act went into effect in Virginia.  This Act has important privacy concerns for users of social media, emails, and other digital assets.  The bill allows for fiduciaries to manage digital property.  Electronic communications, however, are restricted unless the user consents to such access prior to death or incapacity, or if ordered by a court.
computer-user-icon-3

Who are fiduciaries?

Fiduciaries include agents under a power of attorney, trustees acting under a trust, and executors and administrators of a deceased individual’s estate.  Court appointed guardian and conservators are also fiduciaries.

What are digital assets?

Digital assets are electronic records in which an individual has a right or interest.  It does not include the device on which the records are stored.  Virtual currency, web domains, and computer files are examples of digital assets.

What are electronic communications?

Electronic communications are communications in whole or in part by wire, radio, electromagnetic, photoelectronic, or photooptic system.  It includes text messages, e-mails, and social media messages.  It does not include wire or oral communications, tone-only pagers, communications of tracking devices, or transfer of funds by a financial institution. 

How can I consent or prohibit access?

Consent, or prohibition, of access may be given in the power of attorney, will, or trust naming the fiduciary. 
Some custodians have a terms-of-service or online tools that allow a user to designate a recipient or prohibit disclosure to named persons.  The use of such an online tool will override any contrary directions in the user’s power of attorney, trust, last will and testament, or other writing.  The written consent or prohibition in power of attorney, trust, last will and testament, or other writing, however, overrides a terms-of-service agreement that does not require the user to take affirmative action other than a generic assent to the terms of service. 
In other words, the online tool provided by a custodian of electronic communications or assets will be honored if the user takes an extra step to consent to or prohibit disclosure, or consents by some means other than the generic “I accept terms and conditions” button.  If the online tool does not have this affirmative action, then the estate planning tools can be used to consent or prohibit access. 

Can my child’s mother move to another state and take my children?

Friday, August 18th, 2017

By: Kristina Beavers

There are two parts to this question.  The answer to the first part is ‘yes’, your child’s mother (or father) can move to another state.  An adult in the United States is free to move anywhere in the country.

A Relocation Case

This is called a ‘relocation’ case in the child custody world and the mother may not be allowed to take the child with her.  In Virginia, there are special criteria to allow a parent to move a child away from the other parent.  A move that would be a benefit to the mother is not always the best thing for the child and the child’s relationship to the other parent.  This is really part of the ‘best interest of the child’ standard.  The courts feel that being allowed access to both parents is usually in the best interest of the child.  But there are additional items that need to be addressed in a relocation case, such as an independent benefit to the child from allowing the move and the history and frequency of contact with the non-custodial parent.  The courts will also look at the child’s contact with local extended family and friends.

I often tell parents that a ‘normal’ custody/visitation case in the Juvenile and Domestic Relations District Court (JDR) is about the only time I might recommend handling a case without an attorney.  However, because of the details that are necessary to prove in a relocation case, I almost always recommend the assistance of an attorney.  It is just too important to leave to chance.

Contact us for more information

If you have questions about this, please contact the office of Beavers Law, P.C. at 757-234-4650 to schedule a consultation with one of our attorneys.  You can also visit us on the web at www.BeaversLaw.com.

Pavan & Virginia’s Assisted Conception Laws

Monday, July 31st, 2017
What does Pavan v. Smith mean for Virginia’s LGBTQ couples interested in utilizing a surrogate mother to start a family?
In Pavan, the United States Supreme Court reversed a decision out of Arkansas that refused to name a birth mother’s wife as a parent on a birth certificate.  Arkansas law permits the naming of a birth mother’s husband as a parent on a birth certificate in cases of artificial insemination.  The Pavan decision opens with “As this Court explained in Obergefell v. Hodges, 576 U. S. ___ (2015), the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’ Id., at ___ (slip op., at 23).” The Supreme Court went on to declare that a birth mother’s same-sex spouse may be named as a parent on a birth certificate when state law permits an opposite-sex spouse to be named in cases of artificial insemination.  Read the full decision here.
Virginia’s Assisted Conception laws allow a woman and her husband to enter into a contract with a surrogate mother, and, if she is married, her husband.  The Attorney General has stated that the written law should apply equally to same-sex couples, however, the General Assembly has never revised the law.  This lack of revision has left many LGBTQ couples unsure if they will be able to enforce their parental rights under the law even if they are named on the birth certificate.  Pavan reiterates that same-sex couples are entitled to all the same rights and responsibilities under the law as opposite-sex couples.  This decision strengthens same-sex spouses’ right to enforce surrogacy contracts, and other rights and responsibilities of being a lawful parent, under Virginia’s Assisted Conception laws.

DIY Separation Agreement: Don’t Let Your Divorce Become a Pinterest Fail

Thursday, March 23rd, 2017

DIY Divorce graphic

By: Shannon Forrest

Often when someone comes in to discuss a divorce, he or she will want to say that the divorce is “uncontested”.  It is no secret that an uncontested divorce costs a great deal less than a contested divorce.

Unfortunately, to have an “uncontested” divorce, you and your spouse must be in agreement as to all the divorce issues: fault grounds, spousal support, equitable distribution and the child issues of custody, visitation and child support.  If you and your spouse disagree about any one of these items, you do not have an uncontested divorce… yet.

To facilitate an uncontested divorce, where you and your spouse can come to an agreement, I usually recommend that you and your spouse negotiate and sign a separation agreement, specifically one drafted by an attorney.  Why an attorney?  In truth, if you and your spouse were to agree upon terms, written on a napkin, and sign the napkin, that would be a legally-binding document.  It may be hard to enforce in Court, though.

Additionally, what you may be agreeing to, and signing may be two different things.  For example, you or your spouse may agree that “wife can have the house”.  In husband’s mind, this may mean that wife pays the mortgage; in wife’s mind it may mean she “gets” the house after the husband pays the mortgage.  Without further clarification, “wife can have the house” does not say who will pay the mortgage, at all, so you are left without an agreement as to that point.  Another way this happens is when you agree to a legal term, and you don’t know what it means.  This most often happens when a couple agrees to “joint legal custody”.  What if “joint legal custody” means something other than what you thought you and the other parent were agreeing to?

Finally, an attorney can put into an agreement protections that might not have been there otherwise.  For example, how do you and your spouse go about modifying your agreement should circumstances change?  There’s a provision for that.  What if one of you drafted it and the other one felt pressured to sign it?  There’s a provision for that.  What if it was written in Virginia but you both live in different states now?  There’s a provision for that.  I am not suggesting that attorneys are not human, but many of the provisions you and your spouse may leave out come standard in attorney-drafted documents.

In sum, do not allow your divorce to become a Pinterest fail by drafting your own separation agreement, on a napkin or otherwise.  Hire a professional so that you know you are protected and that what you agreed to will become the basis for your divorce.