July 22, 2013

Presentation: Pendente Lite Orders in Virginia

by Philip Yabut in child custody, child support, child visitation, divorce, spousal support

[slideshare id=24497090&style=border: 1px solid #CCC; border-width: 1px 1px 0; margin-bottom: 5px;&sc=no]

Pendente lite from philliefan_99

This is a presentation on pendente lite (or temporary) orders in Virginia, which can be obtained while family law cases are being litigated.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

July 15, 2013

Ore Tenus: The Divorce Hearing

by Philip Yabut in divorce

You have negotiated all of the support and child custody issues, divided all of your property to each spouse's satisfaction, and filed all of the necessary paperwork with the court. You are now at the end of the process, which in Virginia is called the ore tenus hearing.

In Virginia, many uncontested divorces can now be completed without ever setting foot in a courtroom. However, there are situations where a hearing is necessary (for example, if the defendant spouse is absent and cannot be found). Assuming there are no issues to be decided, the plaintiff can request the hearing any time after the defendant answers the complaint.

At an ore tenus hearing, the judge listens to testimony from the party asking for divorce and his/her corroborating fact witness. These questions cover how long the parties have been living separate and apart without cohabitation and without interruption, whether there is intent to remain separate and apart, whether there are support/custody and property issues still in dispute, and if there is any hope for reconciliation.

If there are no issues in dispute, the hearing itself can tend to be less formal than the usual proceeding. The corroborating witness may be allowed to be present for the petitioner's testimony, and the questions are routine. The entire proceeding usually lasts around 10 to 15 minutes, and when it is over and the judge signs the decree and the parties are officially divorced.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

June 18, 2013

"Partial" Divorce in Virginia: "Bed and Board"

by Philip Yabut in divorce

In a previous post, I wrote that there is no such status as "legally separated" in Virginia. While this is true, you need to know that there is an intermediate status known as divorce a mensa et thoro, or "divorce from bed and board."

There are two grounds for divorce from bed and board: cruelty and reasonable apprehension of bodily hurt, or willful desertion or abandonment. The effect of such a decree is separation of spouses and their respective property, but unlike absolute divorce neither party is allowed to remarry (Va. Code § 20-116).

The parties may seek an absolute divorce one year after date of separation.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

June 12, 2013

Proving Intent to Divorce: Your Corroborating Witness

by Philip Yabut in divorce

In the age of no-fault divorce, it is relatively easy to end a marriage if both sides consent and settle their issues before filing. But even if both spouses really, really, really want to split up, someone besides the separating parties must vouch for their intent to divorce under oath and in open court (note: Virginia allows for divorce by affidavit under certain circumstances; DC does not at this time).

Your corroborating witness can be anyone you know -- a relative, friend, colleague. The court requires the witness to answer a series of questions demonstrating his/her personal knowledge of the facts and circumstances surrounding the plaintiff's separation from his/her spouse and whether the couple has remained separate and apart throughout the required time prior to filing the divorce action.

Virginia's special statewide rules allow both the plaintiff and corroborating witness to answer their questions by written notarized affidavit if there are no outstanding issues to be determined by a judge.

The following are sample witness questions taken from a divorce guide provided by the Fairfax County Circuit Court:

1. State your full name and address please? 2. Are you acquainted with the Plaintiff in this action? 3. What is your relationship? 4. How long have you known him/her? 5. Does the Plaintiff currently reside at (ADDRESS)? 6. For at least six months prior to filing the Complaint for Divorce, please state all addresses where the Plaintiff has resided. (Note: if it is the other party upon whom jurisdiction is grounded, then ask this question regarding the residency and domicile of the other party.) 7. So for at least six months prior to the filing of the Complaint for Divorce on (DATE), was he/she a bona fide resident and domiciliary of the Commonwealth of Virginia? (Note: if it is the other party upon whom jurisdiction is grounded, then ask this question regarding the residency and domicile of the other party.) 8. Is the Plaintiff currently married to (spouse’s name)? 9. Have you met the Defendant? Would you know him/her by sight? 10. Are both Mr. and Mrs. (NAME) over the age of eighteen? 11. Have either of them been active duty members of the Armed Forces of the United States or its allies at any time during the pendency of this suit? 12. Is it your understanding that they were married on (Date) in (Place)? 13. Were there any children born or adopted of their marriage? (IF YES, ASK NAMES AND AGES) 14. Did they separate on or about (Date)? 15. At the time of the separation, was it the intent of at least one of them that it would be a permanent separation that would ultimately lead to a divorce? 16. Has that intent continued on the part of at least one of them up until the present date? 17. How did you become aware of the separation? 18. Have you had an opportunity to visit in the Plaintiff’s or Defendant’s home since (Date of Separation)? 19. How often have you visited with the Plaintiff/Defendant in his/her home? 20. In any of your visits to his/her home, have you ever seen anything which would indicate to you that his/her spouse was continuing to live there after (Date of Separation)? 21. How frequently do you speak with the Plaintiff/Defendant either by telephone or in person? 22. In any of your conversations with him/her, have you ever heard anything which would indicate to you that after the (Date of Separation), he/she had reconciled with his wife/her husband and resumed living together with her/him? 23. Do you believe you have a close enough relationship with the Plaintiff/Defendant that if he/she had reconciled with his wife/her husband and resumed living with her/him, that you would have been aware of that fact? 24. So, to your knowledge, have they lived separate and apart without any cohabitation and without interruption from (Date of Separation) up to the present date? 25. Do you believe there is any hope or probability of a reconciliation between them?

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

April 30, 2013

What can be included in spousal support?

by Philip Yabut in divorce, spousal support

When a marriage ends, there is always the possibility of a significant decrease of income for each party, especially if one of the parties made a lot more money than the other. The purpose of spousal support (alimony) is to help alleviate the sudden reduction in income for the more disadvantaged party.

Spousal support can be negotiated between the parties or determined by a judge, and it is usually meant to be temporary, ending after a specified term, remarriage by the party receiving payments, or the death of either spouse. However, a judge can establish permanent support under certain circumstances, such as the supported spouse's inability to become self-supporting.

If the parties cannot reach an agreement for spousal support, the judge is required to take the following factors into consideration, as listed in Va. Code § 20-107.1:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under § 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;

12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and

13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

February 26, 2013

Divorce: Property Distribution

by Philip Yabut in divorce

Property division is one of the most contentious elements of a divorce proceeding. If the parties cannot settle their differences out of court, the judge hears arguments and determines how marital property will be distributed upon the final divorce decree. The state's overriding property distribution laws determine how much leeway a judge has in this decision.

Ten states (Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin) use the community property doctrine, which means all marital property is divided 50-50 regardless of circumstances. Each spouse also maintains their own claims on separate property. The remaining states (including Virginia) and the District of Columbia use equitable distribution, which gives a judge much more discretion to determine what is a fair division of property. The final decision does not have to be an even 50-50 split, but what is fair to both parties. Various court cases over the years have given judges some guidance as to what is considered "fair," but generally speaking, equitable distribution statutes allow judges to consider the facts and be creative. We will discuss some of these cases in a later post.

Obviously, the best way to deal with property issues is for the parties to settle, saving you the contentiousness and expense of a trial. And it would be more advangeous to have a pre-marital (pre-nuptial) agreement in place.

February 5, 2013

Collaborative Divorce: An Introduction

by Philip Yabut in collaborative divorce, divorce

In popular culture, divorce depicted as an ugly adversarial process with estranged spouses always dramatically at each other's throats. Real life is usually never as "exciting" as it is on television, but it is really not that far off. Divorce can be an ugly adversarial process that takes a lot of time, money and emotional cost.

Back in 1990, a Minneapolis lawyer named Stuart Webb founded the collaborative divorce model. The process of collaborative divorce is to get both spouses and their attorneys in the same room and work together to hammer out an agreement without going to court. Instead of the secrecy and strategy of the traditional adversarial setting of a divorce trial, the parties would lay everything on the table and figure out the best way to move forward in as cooperative an atmosphere as possible.

Collaborative divorce uses a different financial model than the traditional adversarial model. Instead of filing court pleadings and hiring experts as the process drags on, the spouses decide from the beginning who the attorneys, mental health professionals who will act as advisors, and the neutral financial analyst will be before beginning negotiations. As a result, much of the cost of the divorce will be borne earlier in the process rather than escalating as the trial gets closer.

Collaborative divorce is a form of alternate dispute resolution, but it is not mediation, which is generally done in conjunction with a traditional adversarial process.

Further reading: History of Collaborative Divorce from collaborativedivorce.net.

December 11, 2012

Presentation: Uncontested Divorce in Virginia

by Philip Yabut in divorce

[slideshare id=15594052&w=476&h=400&sc=no] This presentation is a brief overview of how to proceed with an uncontested divorce in Virginia.

September 7, 2012

Divorce in Virginia -- it's not always no-fault

by Philip Yabut in divorce

No-fault (uncontested) divorce became commonplace late in the last century, and now it has become a lot easier to end a marriage than it had been historically. Since the bonds of matrimony were chiefly religion-based, civil law made it exceedingly difficult to break them. But even before the divorce revolution of the late-20th century, there were ways to get out of a marriage. And, in fact, Virginia still has them on the books (Va. Code § 20-91(A)(1-6)).

Virginia, of course, has its uncontested divorce law at § 20-91(A)(9)(a). The other "fault" grounds are:

1. Adultery,

2. Sodomy or "buggery" (sexual act against nature) committed outside the marriage,

3. Conviction of a felony by either party resulting in one year imprisonment, and

4. Cruelty or willful desertion, one year after the date of such act. In cases of cruelty, the abused spouse will not be charged with desertion if s/he leaves the marital home as a result.

DC no longer has fault grounds for divorce -- all proceedings must begin after living separate and apart for six months if it is voluntary and mutual. If it is not mutual and voluntary, the period is one year.

July 19, 2012

From the Client Files: Separate and Not Apart

by Philip Yabut in divorce

The Code of Virginia is very plain about the basic requirements for an uncontested divorce:

On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year. Va. Code § 20-91(A)(9)(a).

With the onset of the Great Recession and economic sluggishness still lingering thereafter, many divorcing couples are finding it difficult, if not impossible, to find and finance separate living arrangements during the one year time period. So it is important to know that it is still possible to get a divorce even if both parties live under the same roof.

First, it would be helpful to sign some kind of mutual separation agreement which specifically delineates how the parties will maintain separate lives while sharing a roof. But even if the parties do not create such an agreement, there are a number of things that they can do to show the court that they have the intention to divorce:

Hold yourselves as separated to all of your friends, relatives, co-workers, etc.
Maintain separate and distinct living spaces in the house.
Do not pay for the other's necessities, including food, clothing.
Have absolutely no sexual relations with each other.
Do not attend religious services or social functions together.
Prepare and eat meals separately.
Keep separate finances, including (but not limited to) savings, checking and retirement accounts.
Do not share household chores -- i.e., clean up after yourself only.
Show evidence that it would be financially difficult or onerous to pay for separate living arrangements.
Have a someone check in from time to time to corroborate separate living arrangements.

While it is more difficult to get a divorce under these arrangements, it is not impossible. Just plan ahead, be ready to thoroughly explain your situation to the court and a have corroborating witness who will back up your claims.

Family Law News article with case law.

June 14, 2012

Easy does it -- Virginia's new divorce decree

by Philip Yabut in divorce

There has been a lot of big news lately -- the seemingly endless presidential campaign, dying musicians, the life and times of the Kardashians. So I may forgive you if you have not heard of this little tidbit from March: it suddenly got a bit easier to get a divorce in Virginia.

In popular culture, divorces always seem to happen in a courtroom setting. A courtroom divorce is an easy setting for drama, whether it be an episode of Dynasty or a long-running TV show featuring a judge addressed by her first name. In real life, divorces are messy and time-consuming, and if the parties can avoid court, they are often advised to do so. To help facilitate this, in March Virginia's legislature passed and Gov. Robert F. McDonnell signed House Bill 126, which allows uncontested divorce by affidavit and standardizes the required testimony of the moving party and his/her witness. Circuit courts in several counties and cities had already had this measure in place, but this law makes it uniform throughout the Commonwealth. If there are absolutely no remaining issues left to be hashed out, the party seeking the divorce may present his/her evidence by sworn affidavit rather than seeking an ore tenus hearing, thus eliminating the need to go and testify in open court, which can be brutal on people's schedules, especially if they don't reside in the city or county of jurisdiction. And there is more potential to streamline a no-fault divorce by a matter of months since there is less need to wait on the court bureaucracy to get your paperwork through the process.

May 28, 2012

Port v. Cowan -- an update

by Philip Yabut in current events, divorce, gay marriage and divorce

In a previous post I briefly wrote about the saga of Port v. Cowan, a same-sex divorce case that was headed to Maryland's highest court. The parties wed in a civil ceremony in California during the brief time same-sex unions were legal in that state, but their marriage subsequently went sour and they sought a divorce in Prince George's County, Maryland. The circuit court dismissed their claim, ruling that the state did not recognize their marriage as legal. On May 18, 2012, the Maryland Court of Appeals issued its decision, which overruled the circuit court's ruling and instructed it to grant the parties' divorce. The rationale is that Maryland courts only fail to recognize otherwise valid out-of-state marriages if they're contrary to public policy, and they did not consider gay marriage as such. The decision was hailed as a victory by gay rights advocates, and comes as Maryland faces an Election Day referendum on a same-sex marriage law passed by the state legislature and signed by Gov. Martin O'Malley.

April 10, 2012

When Breaking Up Is REALLY Hard to Do -- An Article on Same-Sex Divorce

by Philip Yabut in current events, divorce, gay marriage and divorce

Divorce is a process that is almost, if not just, as old as marriage itself. In the U.S., it was once fairly difficult to end a marriage, but once states began formalizing uncontested divorce procedures it became a lot easier and less expensive. Of course, that is true only for marriages between a man and a woman.

The Washington Post's Ellen McCarthy writes:

"[Port v. Cowan] represents just one of the many blind spots in the legal infrastructure of same-sex marriage in America. Couples often have different rights when they cross jurisdictional lines and may not have the same status in the eyes of the federal government as they do in their home states. The laws are constantly evolving and election-year politics promise to heighten the already divisive passion surrounding the issue."

Port v. Cowan (link leads to a video of oral argument in the Maryland Court of Appeals), nicely summarized by The Baltimore Sun, is a divorce that would be a matter of a few minutes in court followed by a one-line declaration by a judge and a short decree declaring the parties are separated by law. But for gay couples that go sour, the country's current patchwork of same-sex marriage and divorce laws makes something that most people take for granted a more difficult proposition.

If you live in a state that has already legalized same-sex marriage and/or recognizes such unions from other states, divorce is as simple as following the rules. However, if you don't live in such a state and you need to separate from your spouse, the best way to protect your rights is to sign a binding property settlement agreement with your spouse, as well as rewriting your will and creating new beneficiary arrangements for insurance purposes, and that's just for starters. Simply put, you would need to manually sever as many ties as you can with your spouse with separate instruments to gain the same effect that a divorce does automatically.

It is difficult enough, especially during an emotionally stressful time like a separation, to have to deal with jumping through legal hoops. But it is better to safeguard your rights. And maybe someday the law will catch up so all of it will become unnecessary.

April 2, 2012

"Legally" Separated?

by Philip Yabut in divorce

I came across a question on the Q&A site Avvo.com asking if there was such a thing as "legal" separation in Virginia.

If you watch enough television, you'll find the term "separated" casually thrown around as a prelude to divorce, which might make one believe that it is some kind of legal term or procedure. While it is true that Virginia divorce law includes the term "separate and apart" in § 20-91, there is no such thing as a state of "legal separation." If you are seeking a divorce, there is no need to sign anything memorializing the separation from your spouse. Just remember that you need to stay "separate and apart" for the prescribed time.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

February 28, 2012

Separation Anxiety: Preparing for Divorce

by Philip Yabut in divorce

Getting a no-fault (uncontested) divorce sounds simple, but in practice it is not an easy undertaking. Besides likely already being in a fragile emotional state, there are conditions to be met and preparations to be made.

The first set of basic requirements are time and space. In DC, you need to be living separate and apart from your spouse for at least one year prior to filing your divorce complaint (papers). Virginia's time is one year if you have children from the marriage, but only six months if you don't have kids. "Separate and apart" means just that -- you are not living together as husband and wife -- which means (but is not limited to) having separate living arrangements, not going out together for social engagements or worship services, paying separately for expenses and meals, and (possibly most importantly) having absolutely no sexual relations. This condition must be corroborated in court through testimony of a witness, who can ideally be a friend who has seen your lives evolve after the initial separation.

Also noteworthy is that in Virginia it is possible to live separate and apart in the marital home, though it is difficult to prove in court proceedings and requires much time, preparation, and cooperation between the parties.

The other main element is the property and settlement agreement (PSA). If you have any marital property, it should be divided, set in writing, and absolutely agreed to before filing anything with the court. Oral agreements are not enough -- the court will incorporate the PSA into the final divorce decree at the end of the process, so be sure it's accurate and complete.

Preparing for divorce requires patience and diligence, either of which may be in short supply as emotions run high. While it may seem daunting at the beginning, it is important to follow through all the requirements to the letter, otherwise you risk running into unnecessary delays and undue emotional hardship.

February 26, 2012

The Real Marriage Revolution

by Philip Yabut in divorce

As of this writing, seven states (CT, IA, NH, MA, NY and VT) and the District of Columbia have laws legalizing same-sex marriage. Gov. Christine Gregoire just signed a bill legalizing it in Washington, which will start recognizing same-sex unions in June, and Maryland Gov. Martin O'Malley did the same this past week. Advocates are steadily making inroads, though 29 states prohibit it by constitutional fiat and 12 others through statute, and the Defense of Marriage Act (DOMA), passed in 1996, prohibits the federal government from recognizing same-sex unions. Opponents continue to decry it as a threat to the institution of "traditional" marriage. There have been few studies on that subject, and, to be sure, the first state to legalize same-sex marriage (MA) did so only in 2004, but early trends suggest that there have been little or no negative effects on the overall divorce rate.

In 2010, New York made news by becoming the last state to legalize divorce by consent, a.k.a. no-fault or uncontested divorce. Starting with Oklahoma in 1953, each of the other 49 states passed no-fault divorce statutes. Prior to 1953, the only way to get a divorce was showing a court that there were fault grounds to dissolve a marriage, such as abandonment, abuse, adultery or fraud. Absent a real problem (or mutual perjury), it was difficult to end a marriage. But after more states began allowing uncontested divorce in the 1960s, divorce rates started to increase before leveling off by the turn of the century.

One can argue the merits of allowing divorce without fault, whether it be the ease of getting out of unhappy or abusive marriages or curbing institutionalized perjury. The fact remains that divorce rates were widely affected simply by making easier to get one, and that it remains to be seen if the legalization of gay unions will have any effect at all.

January 26, 2012

Details, details

by Philip Yabut in divorce

Divorce can potentially be one of the most stressful and emotional times of a person's life. Even if there are no issues to be worked out between the spouses, ending a marriage is difficult proposition, and ideally it should be done as efficiently and painlessly as possible. For many people, it's just a simple division of assets and liabilities. For others, property can include trust funds, pensions, securities and other complex instruments. And there may also be powers of attorney and wills to worry about on top of everything else.

One of the keys to a smooth divorce is drafting a thorough property settlement agreement (PSA). Be sure to include every single asset and liability, no matter how seemingly insignificant, because any issue can delay proceedings and may require an ultimately unnecessary court appearance or two. Even if you're going pro se, and if you have the means, have an attorney look over it before signing. Online law firms are growing in number, and many offer low-cost, flat-fee consultation and document review.

In short, make sure the PSA is as detailed as possible. People often complain that lawyers are overly wordy in their language (the so-called "fine print"), but this is to make sure there are no questions about what is in the document. In this case, it could save you time and money.