June 18, 2013

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

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.

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

June 14, 2013

Have you done a Living Will yet?

by Philip Yabut in living will

Earlier, I wrote about Five Reasons to Get a Living Will. It's vacation season, and while traveling is fun and relaxing, you should not leave home unprepared for the unthinkable worst case scenario. If you would like to create a legally enforceable living will, you can contact me directly or do it yourself quickly and easily on my online services page.

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

May 2, 2013

Marriage Equality Arrives in Rhode Island

by Philip Yabut in gay marriage and divorce

Today, Rhode Island Gov. Lincoln Chafee (I) signed two bills legalizing same-sex marriage on the steps of the state capitol in Providence. With that stroke of a pen, Rhode Island becomes the tenth state (plus DC) to accept marriage equality under the law. Same-sex couples will be able to marry beginning on August 1, while those who already are joined under the old civil union statute will be able to change their status to married.

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

April 24, 2013

Premarital (Prenuptial) Agreements: The Basics

by Philip Yabut in premarital agreement

A premarital agreement, popularly known as a "prenuptial agreement" or "prenup," is a legally binding contract ratified for the purpose of setting terms for the dissolution of a marriage should it occur. Both Virginia and DC have adopted the Uniform Premarital Agreement Act, setting forth the elements of a prenup in Va. Code § 20-150 and D.C. Code § 46-503.

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

4. Spousal support;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. The ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

There is no specific form required for a premarital agreement, and it does not have to contain all of the items listed above. However, it must be entered into under the rules of a standard contractual relationship and without coercion (see Va. Code § 20-151 and D.C. Code § 46-506).

While an insistence or desire to enter into a prenup may appear to some as a sign of mistrust, please keep in mind that it would solve a lot of potential problems and emotional distress in the future should something go wrong in the marriage. And on a more basic level, it can help a couple be open as to what they expect of each other.

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

April 21, 2013

An explanation of the "public safety" exception to Miranda v. Arizona

by Philip Yabut in current events

On April 19, 2013, Dzhokhar Tsarnaev, 19, was captured after a five-day manhunt following the Boston Marathon bombings. Almost immediately, a dispute over how to treat the only surviving supect of the bombings played out over mass and social media outlets. Should he be considered an "enemy combatant?" Should he be tried in a civil court or a military tribunal? Should he be read his Miranda rights? First, without looking at what should and should not be done, these are the facts as we know them:

1) Tsarnaev is an American citizen.

2) Tsarnaev and his brother, Tamerlan, 26, who was killed during the manhunt, are suspected of murdering four people and injuring over 100 more over the course of five days in and around Boston.

3) The brothers are Muslims of Chechen descent who have been in the United States for more than ten years.

4) There is no indication as of yet that they have any connections to any international terrorist organization, and no group has claimed responsibility for their actions.

Upon capture, it became big news when major news outlets erroneously reported that the FBI read Dzhokhar Tsarnaev his Miranda rights. Soon thereafter, the FBI announced that he had not been read his rights, and that in fact they would not do so until after an elite interrogation team questioned him under the "public safety" exception to Miranda as stated by the Supreme Court in the 1984 decision New York v. Quarles (467 U.S. 649).

So what is the "public safety" exception to Miranda? The Court wrote in Quarles:

"We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them." (467 U. S. 658-59.)

The exception allows the police to question the suspect only on what may be considered an immediate threat to public safety or destruction of evidence. In Quarles, the arresting officer only questioned the suspect as to the location of the gun used in the crime, and the Court allowed Quarles' statement to be admitted at his trial. 467 U.S. 659-60.

In Tsarnaev's case, it would appear that the FBI would only be able to question him on where other bombs could be hidden, or whether he has any associates planning other attacks in the future. However, when it comes to terrorism, the line as to what is an "imminent threat" of terrorism has been blurred by both the Bush and Obama administrations in the name of national security, so it could be up to the courts to determine if Miranda should be limited further.

It is also important to note that the Fifth Amendment does not discriminate by citizenship. Even if Tsarnaev were not a U.S. citizen, he would enjoy the right against self-incrimination under the law, and thus would legally be entitled to receive Miranda warnings and request an attorney to be present when he is questioned further.

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

April 6, 2013

The Law Defined: Physical Custody

by Philip Yabut in child custody

In a previous post, we briefly discussed the two types of child custody (legal and physical). Here, we will go into physical custody in-depth.

Physical custody is what it sounds like: the parent with whom the child resides. This arrangement means that the child's legal residence is with the parent whom the court has granted physical custody. It also means that the custodial parent has the responsibility to care for the child's immediate day-to-day needs, such as food, clothing, shelter, and entertainment.

Courts may grant sole or joint physical custody. In sole custody situations, the non-custodial parent is entitled to visitation rights, which can be worked out between the parties or set by the judge based on the best interests of the child. In a joint custody arrangement, the parents divide their time with the child more-or-less equally.

After the judge signs off on an agreement or rules on the merits, the custody arrangement is final unless there is a finding that a change in circumstances affecting the best interests of the child warrants a modification of the custody order. All custody orders automatically expire when the child turns 18 (can be extended to age 19 or graduation from high school, whichever comes first).

March 27, 2013

Defense of Marriage Act at the Supreme Court -- audio and transcript

by Philip Yabut in gay marriage and divorce

On March 27, 2013, the U.S. Supreme Court heard oral arguments on U.S. v. Windsor, a challenge to the Defense of Marriage Act of 1996, which defines marriage as only between a man and a woman in federal law. The Court has released full audio of the proceedings as well as a transcript. Both can be found at the Court's website here.

March 25, 2013

California Proposition 8 at the Supreme Court -- transcript and audio

by Philip Yabut in gay marriage and divorce

On March 26, 2013, the U.S. Supreme Court heard oral argument for Hollingsworth v. Perry, which is the challenge to California's Proposition 8, which overturned that state's same-sex marriage law. Listen to the audio here through The Washington Post, and read the trascript here through Politico.com. UPDATE: Both can now be downloaded directly from the Supreme Court's website.

March 12, 2013

Marriage Equality Update: Illinois and Rhode Island

by Philip Yabut in gay marriage and divorce

In the fight for marriage equality, two states have bills moving through their legislatures and are poised to to be the next jurisdictions to approve same-sex marriage this year, pending court challenges.

Illinois: The state Senate approved a marriage equality bill 34-21 on February 14, setting the stage for a vote in the Illinois House, which has not yet set a date for taking up the legislation. Lobbying on both sides is well underway, with sports legends lending their support and the GOP party chairman feeling pressure for backing the bill. Gov. Pat Quinn (D) has promised to sign the bill if it passes the legislature.

Rhode Island: A recent poll found 60% supporting same-sex marriage as a bill makes its way through the legislature. In January, the state House overwhelmingly passed the measure 51-19, sending it to the Senate, which will take it up this spring. The vote there is expected to be razor-thin, and fast and furious lobbying is ongoing. Gov. Lincoln Chafee (I) is a vocal supporter of marriage equality.

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 18, 2013

Presentation: Introduction to Collaborative Divorce

by Philip Yabut in collaborative divorce

[slideshare id=16573189&w=427&h=356&sc=no]

This is a short presentation on the basics of collaborative divorce, an alternative to litigation and mediation.

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.

January 22, 2013

The Law Defined: Child Custody

by Philip Yabut in child custody

In popular culture and media, the term "custody" gets thrown around a lot. But what does it mean? There are two types of custody: physical and legal. The two are related, but have meanings that are quite different.

Physical custody: Determination of where child will live as well as who has responsibility for day-to-day care. Courts can grant sole physical custody with right of visitation to the non-custodial parent, or grant joint physical custody where both parents share custody through a parenting plan or similar device.

Legal custody: Determination of who makes long-term and far-reaching decisions as to the child's welfare, health, education and religion. This does NOT include day-to-day care, such as meals and entertainment. Courts may grant joint legal custody or sole legal custody. Separately, if a judge grants joint custody to parents who have trouble agreeing s/he may also grant final decision-making authority to one of the parents.

January 3, 2013

Clearing the Air: Losing Child Custody vs. Termination of Parental Rights (Virginia)

by Philip Yabut in adoption, child custody, child support, child visitation, termination of parental rights

A common misconception in family law is that loss of child custody amounts to a termination of parental rights. These are very different terms with very different legal consequences:

LOSS/LIMITATION OF CHILD CUSTODY: You lose the physical custody of your child (he/she lives with the other parent full time) and/or the ability to make decisions as to your child's daily care. However you still have the right to ask for visitation. You also maintain the right to challenge or change the custody determination at a later date. You legally still have a say in influencing your child's values, religion, schooling and healthcare, and your child can still automatically inherit from your estate or vice versa absent a will saying otherwise. And, most importantly, you maintain responsibility to support your child financially (i.e., you are not excused from child support!).

TERMINATION OF PARENTAL RIGHTS: You lose all of your rights over your child, and with it any right to be involved in your child's life. Effectively, you are no longer legally recognized as the parent, meaning you have absolutely no rights of visitation, and the child will no longer be able to inherit from you or vice versa absent a will saying otherwise. This also means you no longer have the responsibility to give the child any financial support.

The bar for court-ordered termination of parental rights is also much higher than a change in custody arrangements. For custody, a material change in circumstances for either or both parties is necessary. However, a complete termination can only arise from clear and convincing evidence of abuse and neglect.

While a parent can voluntarily give up custody rights, it is not possible to do the same for parental rights. That is, you cannot "sign over" your parental rights to the other parent. Only a court can terminate parental rights, and it will only do so if there is a third person ready to "take over" care and support for the child. A proceeding for termination of parental rights must start with a petition to the Juvenile and Domestic Relations Court, after which the judge will appoint a guardian ad litem for the child and the Department of Social Services will begin a thorough investigation.

Parental rights are also terminated as a matter of course in adoption cases. In cases of giving up a child for adoption to a non-relative, your family members also lose rights of visitation and inheritance.

Further information: Virginia Legal Aid Society: Termination of Parental Rights

December 31, 2012

DOMA and Immigrant Status

by Philip Yabut in gay marriage and divorce

The 1996 Defense of Marriage Act (DOMA) prohibits the federal government from recognizing same-sex unions even if they are legal in any of the states. The most well-known effects of this legislation are that gay couples cannot file joint income tax returns, do not have automatic rights of hospital visitation or inheritance, cannot be automatic beneficiaries for pension or insurance plans, and so much more. In fact, there are at least 1,138 different automatic rights and privileges afforded to legally married heterosexual couples that the DOMA denies to same-sex marriages or civil unions.

The Washington Post recently published a story of one of the more little-known effects of DOMA: a lesbian couple legally married in Washington, DC, that may be separated by the law because one of the spouses has an expiring student visa. Normally, a citizen spouse in a bi-national marriage can automatically sponsor the immigrant spouse for a green card. Since the federal government does not recognize same-sex unions, the effect is that the immigrant spouse would have to return to his/her home country unless they can find another way to stay in the United States. The Family Equality Council estimates that around 36,000 couples (46% of which have children) are affected by this rule.

In September, Secretary of Homeland Security Janet Napolitano issued a directive recognizing binational same-sex couples as families and placing them on "low priority" status for deportation proceedings. This action was lauded by LGBT rights advocates as a step in the right direction. A more permanent solution, of course, would be a complete repeal of DOMA, which is currently on the Supreme Court docket this term.

Read more: Immigration Laws & Same-Sex Couples from Marriage Equality USA (MarriageEquality.org).

December 17, 2012

Five Reasons to Get a Living Will

by Philip Yabut in living will, power of attorney

A living will -- a.k.a. Advance Medical Directive -- is a power of attorney that directs your living relatives or beneficiaries to make medical decisions for you in the event you become unable to do so yourself. Typically, living wills are used for the ultimate decision of extraordinary means to extend life.

But why should you get a living will?

1. It is a legally enforceable document that removes all doubt as to your wishes, making it easier for your family to act at an emotionally distressed time.

2. It heads off potential for expensive and exhausting litigation, the Terri Schiavo case being the most extreme example.

3. It gives you peace of mind that your final wishes will be carried out if the unthinkable happens.

4. It gives your friends and family peace of mind knowing that they will not have to agonize over an unthinkable decision.

5. It is inexpensive. You can get one on my online services page.

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.

October 30, 2012

Presentation: Standing to File a Civil Protection Order in DC

by Philip Yabut in domestic violence

[slideshare id=14961000&w=427&h=356]

This presentation is the first of a series on filing a Civil Protection Order (CPO, known in other jurisdictions as a "Restraining Order") in the District of Columbia. It covers who is eligible to file a CPO in D.C. Superior Court.