June 14, 2012

Easy does it -- Virginia's new divorce decree

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.

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May 15, 2012

Building up vs. tearing down

by Philip Yabut in child custody

To say that child custody is a delicate matter is an understatement. Emotions run high whenever a child is in the middle of a dispute, and when a court has to get involved, the stakes are all that much higher.

A child custody hearing is essentially a trial, complete with opening and closing statements, witness testimony and exhibits. The object is the convince the judge that your proposed custody arrangement is is in the best interests of the child. The judge will look at the evidence and testimony and consult the local jurisdiction's guidelines as to what will be the best arrangement for the child. And absent evidence to the contrary, the default position is that the parents should have joint physical and legal custody.

Because this is such a touchy subject, it is easy to go ahead and try to demonize the other party and convince the judge that s/he is incompetent or incapable or something worse, and therefore would be unfit to have his/her proposed custody arrangement in place. Pointing out the other side's faults may work well in a political campaign, but in these matters it is much more important to try to paint yourself or your client in the best light possible. Do not get bogged down in telling the judge everything wrong with the other party -- instead, tell the judge why you are a good parent and rebut every point that the other side tries to charge against you through friendly witnesses and positive evidence.

"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

January 12, 2012

Change a Judge Can Believe In

by Philip Yabut in child support, spousal support

National Park Service

To paraphrase the old philosopher Heraclitus, change is the only constant in the universe. Everything in nature is in continuous movement, and one never sees the exact same thing twice. You can go to the same spot overlooking the Grand Canyon a thousand times, but each visit is unique, a little (or a lot) different. No matter how similar it looks, if you examine your surroundings more closely, you'll find differences both obvious and subtle.

In family law, change is paramount in cases of child and spousal support. After the judge's initial support decree, the parties have two choices: live with it until it expires on its own, or try to amend it. Both the Virginia and District of Columbia codes provide for modification of support orders if the party asking for it can show a material change in circumstances. That change can be as major as a new (or loss of a) job, marriage, health problems -- or something as mundane as the passage of time. If you show the judge that things are different, you can get more (or be compelled to provide less) support for yourself or your children.

Support guidelines are generally mechanical in nature -- you both supply income and assets/liabilities information and, for the most part, the judge chooses the number that comes up. The judge has some leeway for extenuating circumstances like those I mentioned above. When you seek a support order modification, be sure to tell your attorney everything you can think of that can or actually does affect your financial status, no matter how mundane. Because even the smallest change can be significant.