Posts Tagged ‘Divorce’

Hers, Mine and Ours

Monday, June 5th, 2017

By: Shannon Forrest

Generally, if you were married when you acquired it – whatever the item is – it is marital property. There are exceptions to this rule, but not many. There may be different rules in other states, but this is the rule in Virginia. In other words, even if you have been working hard, received your wages and bought a “toy”, a motorcycle, for example, from your own paycheck, “half” of that motorcycle is still the other spouse’s.

Is it only in your name? Well, you’re married, so that title is a legal fiction. A Court may act much the way a Trustee does in a Bankruptcy, and change the title of the item, just so it is split equitably. “Equitably” means “fairly”, not necessarily 50:50. For example, the Court might look at why you are getting divorced, that is, the grounds for your divorce and distribute the property 30:70. In fact, the Court considers 11 factors when dividing property fairly.

This Rule is why, when an attorney hears you are getting married, he immediately mentions a Prenuptial Agreement. It is one of the few ways to preserve property that does not become “hers, mine and ours”.

A note about retirement. Retirement, earned during the marriage, is considered marital property, even if it is paid as monthly income. Generally, the Court awards half the “marital portion” of a spouse’s retirement. The “marital portion” is the total amount of retirement you earned during the marriage. The Court uses a special Order that allows companies to apply this formula to retirement accounts so that they are split fairly. Again, a retirement account is treated like a piece of property, and the general rule of “hers, mine and ours” applies to it.

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.

Can my spouse refuse to get a divorce?

Monday, November 25th, 2013

Sometimes I have people come into the office and they tell me that they want a divorce, but their spouse refuses.  Sometimes it is because of religious beliefs and sometimes just because they like things the way they are.  Or sometimes it is because the other spouse doesn’t want to share any of the marital assets.  And sometimes it is because the other parent thinks that staying together until the children are out of the house will be better for the children.

Whatever the reason, this is one version of a contested divorce.

In the past, one spouse could refuse to get a divorce, but that is no longer the case.  If one spouse wants a divorce, it will happen…eventually.  But it won’t necessarily happen quickly or inexpensively.

I’ve often seen a divorce take over 4 years to be completed and include numerous court hearings and very large attorney bills.

If you want to get a divorce, and your spouse refuses, you really need to have an attorney.  This is not a case you can handle on your own.

If you have questions about this, or any other legal subject, please feel free to contact the office at 757-234-4650 to schedule a consultation with an attorney.

Should I take a Polygraph?

Wednesday, October 2nd, 2013

Sometimes, I have clients come in who are adamant that they are not guilty and they will state ” I’ll take a polygraph that will prove I’m innocent! ”

A polygraph is a nice name for a lie detector test, and most people think they can ‘beat the test’ even if they are guilty. And sometimes, they really aren’t guilty of this particular accusation so they think they’re safe in taking the test.

The problem is that a polygraph has been proved to be ‘inherently unreliable’ and cannot be used in court.  It doesn’t really prove anything.

That part is fine.  What isn’t fine is that any statements you make during the interviews before or after taking the polygraph CAN be admitted into court.

Most of the time, the person taking the polygraph isn’t in custody, they came into the office to take the polygraph on their own and they are free to leave at any time, so the authorities don’t really need to issue any Miranda warnings, and they can ‘chat’ about anything.

Also, people use lie detector tests in cases other than criminal.  For example, sometimes people will be accused of adultery in a divorce case and they will agree to a polygraph to ‘prove’ they didn’t have an affair with someone.

My advice?  If you are ever in a position where you think you might want to take a polygraph to prove you’re innocent, just say no…..or at least contact an attorney and have the attorney with you when you go to take the test.  The attorney may be able to stop you from answering an ‘innocent’ question that might end up getting you into real trouble.

If you have questions about this or any other legal topic, please feel free to contact us at 757-234-4650 or visit our website at www.BeaversLaw.com.

Estate Planning for the Blended Family

Friday, July 19th, 2013

It used to be that people would use a ‘family tree’ to describe their familial relationships.  Today, it is more like a ‘family bush’.

Children are born without the benefit of the parents being married, people are married-divorced-remarried and the traditional family that is the basis of most state’s default estate distribution statutes just doesn’t handle these situations appropriately.

Who should inherit when a person dies?  Is it the children of that person?  The current spouse?  What about the children of the spouse that the step-parent raised for most of their life?

What would happen to your estate if your spouse remarries and has other children after your death?  Or possibly your spouse gets remarried and then divorced?  Would the estate that you worked so hard to establish become the property of your spouse’s new ex?

These are confusing questions, but they are not unsolvable.  In order to handle these cases appropriately, you should have the benefit of an estate plan developed by a legal professional that knows how to make sure that your wishes are followed.

We are having a free, public, informational seminar on Saturday, August 17, 2013 in the meeting room of the Tabb Library located at 100 Long Green Blvd. in Yorktown (across from the YMCA).  The Seminar is scheduled from 10:30 to 11:30 and we will be discussing these issues and how they might be addressed.

Please join us for this informational seminar.

If you are unable to attend this particular seminar, check out our seminar page to see if there is another seminar or time that fits better with your schedule.

If you have questions about this or any other legal topic, please feel free to contact us at 757-234-4650 or visit our website at www.BeaversLaw.com.