Archive for the ‘General Information’ Category

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.

Do I have to do court ordered community service?

Monday, February 27th, 2017

Sometimes I have people come into the office and they tell me that they can’t do community service because they have a health problem.  Perhaps they hurt their back or something else and they feel that they should be given a chance by the court to just bypass the community service requirement because of their special situation.

The court doesn’t really give people a pass just because they don’t want to do something, or it’s hard for them to do it.

What can you do?

If you have been ordered to do community service, you will need to  do something to help the community.  You have probably been assigned a representative from the court services unit or the probation office and they can help you with ideas of where you might be able to do your community service.

Picking up trash on the side of the road is only one thing that is available.  You might help at a food bank either getting food ready to put on their shelves, or put food in bags for clients.  You might also help out at a church or community center in a lot of different ways including getting the weekly bulletin or monthly newsletter ready to be delivered.  During the winter months, you can also help at homeless shelters or church communities that provide temporary housing and food for the homeless.  Many thrift stores use volunteer help to put price tags on items or other tasks around the shop.

The most important thing is that you need to find something to do that will fulfill your community service requirements.  If not, you might just find yourself in jail.