Archive for the ‘Family Law’ Category

PRENUP FOR ‘MATURE’ COUPLES

Sunday, June 10th, 2018

We’ve all heard of couples who have a prenuptial agreement to deal with inherited wealth, but we probably think a prenup is only for when one spouse is wealthy and the other spouse does not own as much.  That is just one of the situations where a prenup is a good idea.

Wealth is not the only criteria for creating a prenup, making sure you know about the resources that each spouse owns and how those resources will be distributed if the marriage ends in divorce.

Another situation where you might want a prenup is when this is not the first marriage for either or both of the spouses, especially if there are children of a previous marriage.  People often want to ensure that the resources they have gathered prior to this marriage are going to be used for their biological children in the situation where their marriage to someone who is not the other parent of those children comes to an end.  A good estate plan can assist with the distribution of assets, but an estate plan often comes into play only after someone’s death, and not when a marriage ends in divorce.

Age is another factor to be considered because future earning power often becomes limited due to a much shorter remaining life span.  For example, someone in their twenties has over forty years to earn sufficient funds to support their lifestyle, while the earning lifespan for someone in their forties or fifties is very much reduced.

Also, it is less likely that someone in their twenties will have established a large retirement fund while it is more likely that someone past the age of fifty has at least started to fund a retirement plan.

In addition, it is always a good idea to think about how a partnership will end while the people still like each other.  We usually suggest that people draft an agreement about how to end a business while they are drafting the business organizational documents.  It is the same with a marriage.

If you have further questions about a prenup, or if you need some help in getting started, please contact our office at 757-234-4650 to schedule a consultation. We would like the opportunity to help you get started!

Can I adopt?

Saturday, April 14th, 2018

The short answer is ‘maybe’.

There are different types of adoption. You can adopt a baby, using an adoption agency or through a private placement. You can adopt an older child, again through an adoption agency or through a private placement. Some times, that private placement might be from a family member or a friend. Or you can adopt your step-child. This is the ultimate in private placement.  There are some situations where you can even adopt an adult.

Generally, any adoption will mean that you are subject to a visit by social services to evaluate your home and family dynamics. This is not meant as a mere hindrance to you, this is for the protection of the child. Remember that the best interests of the child come first!

Even though a step-parent adoption may seem easier, it still entails the biological parent giving up his or her rights to the child. This can sometimes be a very emotional time for parents. Even a father who has never set eyes on his child, and has never shown any interest in paying support or being a part of the child’s life may balk at giving up his parental rights.

Do you need an attorney? I don’t know of any law that requires someone to use an attorney. However, anyone who decides to proceed ‘pro se’ (which is a confusing term to mean that you do it yourself), will still be held to the same standard as an attorney. So it is often even cheaper to get an attorney at the beginning and do it right the first time.

And one very important thing to remember is that children are not for sale! This means that you must be very careful about what payments you make on behalf of the biological parents, or payments made directly to the biological parents.

My suggestion is that if you are considering an adoption of any kind, call your attorney and at least get some initial background information before you proceed. It can save you a bundle in the end!

You can contact Beavers Law, P.C. by calling our office at 757-234-4650 or by visiting us on the web at www.BeaversLaw.com

How long does it take to get divorced?

Tuesday, February 13th, 2018

I get this question a lot.

People call and ask if they can get divorced in three days (I guess there are places where that can happen, but it is NOT in Virginia!).

A quick, easy, painless divorce in Virginia is almost impossible, but you can help things move more quickly if you and your soon-to-be-ex-spouse can agree on things. Even with a ‘simple’ no-property, no children and non-contested divorce, the courts will require a separation of at least six months. Why? Because the Commonwealth of Virginia thinks that marriage is a very serious commitment and leaving a marriage is a very serious decision.

Another question I get is whether or not a ‘better’ attorney can make things go faster? The answer is ‘not really’.

There are certain procedures that must be followed, and some of these take time. There might be a way to reduce this time if possible, but that really takes a lot of agreement between the parties. And if the parties could agree with each other, the chances are that they wouldn’t be in the process of needing (or wanting) a divorce!

I’ve also found that ‘non contested’ divorces have a way of turning into ‘contested’ situations. Which means that the ‘simple’ case often turns into a more complex case as things progress.

I’ve heard of divorce cases that dragged on for 10 years, although this is definitely NOT the norm!

So, how long does it take to get divorced? I’d plan on a minimum of six months from the date you make the decision to the date of the final decree. And that’s if things all go as well as they can.  It may be a little faster than this, but you should always plan on a few ‘hiccups’ along the way.

You can contact Beavers Law, P.C. by calling our office at 757-234-4650 or by visiting us on the web at www.BeaversLaw.com

What’s in a name?

Monday, January 8th, 2018

I have a name. Actually, I have lots of names. Kristina Beavers, Mom, Grandma Kris, and maybe some I don’t even know about. I’ve also had a last name when I was a child, and different last names when I was married to prior husbands.

A name is how people identify you. And it’s also how you often identify yourself.

So, what do you name your child when he or she is born? We all struggle over the first and possibly middle names, but did you know that you can also select a last name? And, no, that last name doesn’t need to be the same as the father, or the mother. What this means is that Susie Baker, who is married to Tom Taylor can have a child and name her Jane Smith. (note that these names are as samples only and not an indication of any real persons).

Is this a good idea? I don’t really think so. For one thing, people may assume that you and the child have the same last name. That can make things very confusing when meeting people from your child’s school. That can also cause problems when you sign permission slips for school trips or when you take your children on trips yourself.

I’ve even had clients that gave their children a last name that didn’t match the last name of either parent.  That was a little confusing.

So when you have a child and are thinking of a name, be sure to think about how that name might cause problems for you and the child throughout the child’s life.

And if you happen to have a name that you don’t like, you can usually get that name changed legally, but there are some steps that need to be followed.

You can contact Beavers Law, P.C. by calling our office at 757-234-4650 or by visiting us on the web at www.BeaversLaw.com

A New Year’s Plan

Monday, January 1st, 2018

The New Year is a great time to make resolutions and set goals.

But goals probably won’t be met unless we also have a plan of how to get there. If we are traveling to DisneyWorld, the goal is to get to the magic kingdom. But we can’t get there unless we know which road to take and calculate how long it will take us to get there. We might need to stay overnight on the way, so we need to find a hotel and make advance reservations. We might be lucky and just find a great hotel at a great price right where we want to stop at the end of the day. But, we might also be unlucky and find that we get tired of driving just after we go through the last town for 100 miles. If we plan ahead, we’ll know for sure that we have a room when and where we want one.

Now is a great time to think about what you want to do in the coming year, and to make the plans to ensure you get what you want.

Are you a young parent who does not yet have a Will or estate plan? Do you know who will take care of your children if anything happens to you?

Or are you an older person who’s children have grown up and are out of the house? Have you updated your will or estate plan to take these changes into account?

Are you thinking about starting a new business this year? do you know what steps you need to go through to get that accomplished?

Has your family life reached the stage that you just can’t stand it any longer? And you want to make sure that you and your children are protected financially?

Are you finally going to purchase that house this year?

One of my personal goals this year is to lose weight (yes, again). This time I have a plan of how to approach it and monthly mini-goals along the way so that I can adjust what I’m doing if it doesn’t seem to be working for me. And I have it on paper so I can touch it and read it every day to make sure I’m on track.

Another goal I have is to make sure that my own estate plan is up to date. My plan includes reviewing my living will to make sure that I haven’t changed my mind about any of my previous decisions. It also includes checking to make sure that any investments I’ve made this past year are included and that things I’ve sold are removed from my trust documents.

I have goals for my business and what I want to accomplish this year. My plan includes pieces on marketing, new subject areas and customer service. And I set milestones for each month so I can check my progress to make sure I’m still going in the right direction.

As you can see, I have lots of goals (and plans) for this new year.

If you need help with any legal aspects of your plans for this new year, call the office at 757-234-4650 and we can set up an appointment to discuss your goals and how to get there.

Who gets custody of the children in Virginia?

Monday, October 30th, 2017

The breakup of a marriage is a very emotional time….for the married couple and especially for the children.

No matter what custody decisions are made, things will never be the same. The children will no longer live in the same house with both the mom and the dad.

How does the court make a decision about where the kids will live?

It used to be that the kids always stayed in the house with Mom. It doesn’t work that way anymore. Today, the courts in Virginia make the decision based on what is in the ‘best interest of the child’.

I think that’s a good thing.

There is a list of things that the court will consider when it makes the decision listed in the Virginia Code in section 20-124.3 :

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

As you can see, this is a very broad list of things to consider. Also, with number 10, the court can look at anything that might have an impact on the decision.

How do I get a divorce in Virginia?

Tuesday, September 26th, 2017

There are 6 basic steps to getting a divorce in the Commonwealth of Virginia:

You should also be aware that there are two types of divorce in Virginia. A ‘divorce a vinculo matrimonii’ (or a ‘divorce from the bonds of matrimony’) is the type of divorce most of us recognize. It is a final dissolution of the marriage and after this divorce the parties can be remarried.

A ‘Divorce a mensa et thoro’ (or a ‘divorce from bed and board’) is more like a legal separation and might be the first stage of the ‘regular’ dissolution. When this type of divorce is granted, the parties are not free to remarry.

Step 1 is to be married. I know this sounds odd, but I’ve had calls from people who are living together without being married and who want a divorce. In general, Virginia does not recognize common-law marriages, but if this is a concern for you, call the office and we can discuss your situation.

Step 2 is to decide if you have ‘grounds’ for your divorce. If you are getting a divorce because of your spouse’s adultery, cruelty, desertion or one of the other grounds for a fault divorce, you might be able to get your divorce more quickly. Call the office with information about these grounds because your actions after you find out about the grounds may make a difference.

Of course, you don’t necessarily need grounds for a divorce. It may be that you and your spouse just have irreconcilable differences. You can still get a divorce, it just means you need to approach it differently.

Step 3 is separation. If you do not have fault grounds for your divorce, you and your spouse must live apart (which means no marital relations) for six months (if you and your spouse have a property agreement and there are no children) or twelve months (if there are children and/or you and your spouse have not come to an agreement on the separation of property).

Step 4 is to file your complaint. This is the document that tells the court the basic information about your marriage…where you and your spouse live now, when and where you were married, whether you have children, what type of divorce you want and why…and what you want the court to do.

Step 5 is depositions. These are questions and answers conducted under oath. If the divorce is non-contested this can usually be done in your attorney’s office. If the divorce is contested, the depositions might be taken in court. You will be asked some questions and you will also need to provide a witness (who can be a friend or relative as long as they are at least 18 years old) and that witness will also be asked some questions.

One of the things that you and your witness will need to say under oath is that you and your spouse have lived separate and apart for the required amount of time.

Step 6 is the final decree. Your lawyer will prepare this document and send it to the court and when the judge signs it, your divorce is final.

If there are issues that the court needs to resolve, such as custody, visitation, child support, spousal support or division of property; you may be involved in one or several hearings in court. Evidence will be presented and the judge will make a decision. Of course, if you and your spouse have already discussed these issues and have come to an agreement, your attorney can document those decisions and present them to the court, which will make the entire process go more quickly and with less stress.

This is just a quick summary of the steps needed. Each case is slightly different and you situation may entail additional actions. Your attorney can help you chart how you should proceed.

What can I expect as a property settlement?

Sunday, March 8th, 2009

When you get a divorce,the courts will only try to divide what is termed ‘marital’ property. Any property that is termed ‘separate’ property will be granted to the person who owns that separate property. 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.

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

Virginia uses what is called ‘equitable distribution’ to divide 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 situations that can make a difference.

The first step in any property division is to correctly identify property as ‘his separate property’, ‘her separate property’ and ‘their marital property’. While this sounds simple, it can get quite complicated. It is very important to keep good records so that separate property can remain identified.

Code of Virginia section 20-107.3 is the statute that outlines the steps to be taken for 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.

How do I choose a guardian for my children?

Tuesday, January 13th, 2009

One of the really difficult things any parent has to consider is who to name as the guardian of their children.

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 named 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. Even if you decide that this is a good idea, what about the situation where that other parent is also not available?

Assuming you have agreed that you need to name a guardian, 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 physical 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!