Tag Archives: Northern Virginia family law attorney

Legal Separation in Virginia: What Does It Mean?

Legal Separation in Virginia

Legal Separation in Virginia
NOVA Estate Lawyers – Leesburg, VA

The decision to end a marriage is emotionally painful and often very difficult for both spouses. But unlike an unmarried couple, you can’t simply move out and move on: You’ll need to go through the divorce process to officially dissolve your relationship in the eyes of the state.

For many couples, the first step on the road to divorce is separation, especially in no-fault cases. In some states, couples can file paperwork to officially claim the status of “legal separation,” in which they live apart and fulfill certain marital obligations prior to a divorce, as agreed to by a court order.

This is not the case in Virginia. Here, a married couple is considered “legally” separated if one or both members intend to end the marriage, and cease to cohabitate as a married couple.

What does that mean?

The first of the two main criteria for separation is simple: You and/or your spouse must believe the marriage is over and decide that you will seek a divorce. This decision may be made separately or mutually, and your husband or wife does not have to share your intention. However, a divorce court will not recognize the official start of your separation until you clearly communicate your desire to end the marriage to your spouse (more on that below).

The “cohabitation” requirement can be a little trickier if you still live in a shared residence – which many couples do at the time one or both of them decide the marriage is over. The easiest way to stop cohabitating as a married couple is for one spouse to move out, but that’s not always practical or financially possible, particularly if you have children together.

Fortunately, you can still be legally separated from your husband or wife while you’re under the same roof, but you must live and treat each other as platonic roommates. This means, first and foremost, that you cannot share a bed or room, nor can you act like a couple inside or outside the home. For example, you can’t shop, cook, or clean for each other, sleep together, go on one-on-one outings together, etc. Essentially, you must not behave in ways that would indicate you are a married couple.

How long do I have to be separated before I can get divorced?

Before a spouse can even file for a no-fault divorce, the Commonwealth of Virginia requires that they be officially separated for one year, or for six months if they have no minor children and create a separation agreement.

In fault-based cases on the grounds of cruelty, desertion, or abandonment, you can file for a limited divorce from “bed and board” at any point after your separation period begins. However, the court will only transfer a limited divorce to an absolute divorce from the bond of matrimony (i.e., you become legally single) after the couple has been separated for a full year.

Establishing the date of separation becomes important here: If the timeline is contested by either spouse, it may delay your divorce proceedings. A surefire way to prove the timeline of your separation is to both sign an agreement that clearly states the date you separated, and that you have no intention of reconciling. If one spouse moves out of the marital home and communicates the intent to end the marriage, this can also be considered a valid date of separation.

Your separation timeline is also important for dividing up assets during your divorce. Generally, any income earned and items purchased after the official separation date are considered separate, individual property that cannot be awarded to your spouse.

There are two key exceptions to the separation waiting period. If you can prove that your spouse committed adultery (or other sexual acts outside of your marriage), or if your spouse has been convicted of a felony and sentenced to at least one year of jail time, you may immediately file for a divorce from the bond of matrimony.

Keep in mind that, due to the complex nature of many divorce cases, it can take months or upwards of a year to get through the litigation process and receive a final order of divorce, regardless of grounds.

Consulting a family law attorney about your separation

If you and your spouse are considering divorce, you’ll want to speak with an experienced family law attorney to go over your options. A lawyer can also help you draft your separation agreement and reach the fairest, most equitable divorce settlement possible.

The Law Office of Patricia E. Tichenor, P.L.L.C., has been serving Northern Virginia families for more than 15 years, and we can make this complicated, difficult period in your life easier. Contact us today to speak with a counselor about your needs and circumstances.

How to Handle a Surprise Divorce

How to Handle a Surprise Divorce

How to Handle a Surprise Divorce
NOVA Estate Lawyers – Leesburg, VA

You think things are fine with your marriage, and then your spouse suddenly says they want a divorce. Although you may have suspected that there were issues within your marriage, you are completely thrown by their announcement.

Negotiating your way through a divorce is never easy, even when both sides agree to the split. Navigating through it when it is a surprise is even more difficult. Here are some steps that can make it easier.

Find someone to talk to
Your emotions are going to go crazy, so find a professional you can talk with, like a clergy member, spiritual leader, or therapist. Speaking with an unbiased professional can help provide clarity to your thoughts and help you think rationally when emotions flare.

Engage a family law attorney
Immediately begin looking for an attorney, and interview them to make sure you find the right fit; chances are your spouse may have already engaged an attorney even before breaking the news to you.

Knowing your rights, and what the law in your State allows, will be important as you negotiate your divorce. An experienced family law attorney like the Law Offices of Patricia E. Tichenor, P.L.L.C. can assist you to set a plan in action and help you avoid costly mistakes.

Your family law attorney can help understand the legal process, develop a strategy of what steps to take next, how to react to your spouse’s legal actions, draft legal documents for court, negotiate settlement, or even assist with obtaining temporary custody and support orders, injunctive relief to protect assets from being depleted by the spouse seeking the divorce, or a seeking a restraining order if there are issues of abuse. Be open with your attorney about what’s going on even if you feel ashamed or embarrassed, as that will ensure you get accurate advice about your case and your best course of action.

Be proactive and preemptive
Don’t just sit back and wait for your spouse to take charge. Set up your own action plan for dealing with the divorce. You will want to protect your assets, bank accounts, living accommodations and child custody arrangements, and be ready with your wishes when it is time to sit down and negotiate.

Photocopy all documents relating to finances and other legal property, and photograph your valuables. If papers seem to be missing, directly ask your spouse for them; they may be attempting to protect their own interests by hiding documents. Set up your own bank accounts and credit cards (tell your spouse if you cancel a card), but do not attempt to take all the money or run up large bills out of spite. Seek advice from your attorney about permissible uses of assets or lines of credit.

Be communicative
Although the news can come with a plethora of emotions ranging from disbelief to anger, and thoughts from sadness to revenge, it is best to remain communicative and open with your spouse. Even if they make you furious, they have rights too. It will make the entire negotiation process easier.

Keep the children out of it
Don’t involve the children in your battle, or make them take sides. They are merely bystanders to your divorce from your spouse. It is okay to let them see that you are sad, but refrain from bad-mouthing your spouse or attempting to manipulate your children to your side. It is best if you and your spouse break the news to your children together, and assure them that the divorce is not their fault.

Consult with friends who have gone through a divorce
Some of your most valued support may come from friends who themselves have gone through a successful or collaborative divorce. They may have tips on how to survive during this family upheaval, and may be able to assist in other ways, like watching the children or being there when you need to talk. Every case, however, is different, so do not use their input to gauge what you should ask for or obtain in court; instead, leave that subject to your attorney’s expertise. Beware of counsel from those who have not undergone a divorce, and avoid advice that instructs you to “get back at” your spouse to punish them.

Take care of yourself
Avoid letting your emotions drag you into a depressive or otherwise harmful state, even though you should take time to grieve. You are suffering a loss, similar to a death. Use this time to create a new life for yourself. A little pampering never hurts either. Take time to be with friends and do enjoyable activities that will take your mind off your current situation. Don’t let the divorce devastate your self-esteem, and don’t beat yourself up over it. You are still a worthy and valuable person. Don’t however, jump immediately into a new relationship; that would be disastrous for all.

Contact the Family Law Attorneys at the Law Office of Patricia E. Tichenor, P.L.L.C.
Trust the counsel of Northern Virginia attorneys Patricia Tichenor and Camellia Safi to help you navigate through the separation, settlement, support, and child custody issues involved with your divorce. You’ll want to have a passionate, experienced attorney on your side. Contact us today.

Post-Nuptial Agreements – Could a Contract Save Your Marriage?

Post-Nuptial Agreements-Could a Contract Save Your Marriage?

Post-Nuptial Agreements – Could a Contract Save Your Marriage?
NOVA Estate Lawyers – Leesburg

As strange as it may seem, a post-marital or post-nuptial contract might be the secret to a strong marriage. It could also heal the wounds that might otherwise result in divorce.

This can be especially true for people who are re-marrying and bringing with them separate assets, an inheritance from a deceased parents, or children from a prior marriage for whom they want to ensure protection of their inheritance. Having an agreement in place can save them the thousands of dollars it may cost them to secure in a contested divorce.

Post-nuptial or post-marital contracts can also be customized to meet the unique goals of each couple, whether dealing with chores or other household responsibilities and how these tasks might be divided between the couple, or addressing the use of therapy and relationship-building exercises in the face of a spouse’s infidelity.

What is a Post-Nuptial Agreement?
A post-nuptial agreement is a formal, written agreement created and executed after a couple marries or enters a civil union, with the intent to settle a couple’s assets and affairs in the event of a separation of divorce. It might cover matters such as property division, spousal support, death of a spouse, or the breakup of a marriage. In most states, child support and child custody are not included in a post-nuptial agreement.

There are generally three types of post-nuptial agreements:
1. One that assigns marital property upon death of one spouse;
2. One that creates a separation agreement in order to avoid time and cost of divorce proceedings; and
3. One that limits or sets forth rights in a future divorce, such as limiting alimony based on duration of the marriage, waiving alimony, or addressing marital property division.

Similar to a pre-nuptial agreement, there are certain legal requirements for the post-nuptial agreement to be valid (and these vary state-by-state):
• Written agreement
• Voluntarily executed without coercion or force
• Full and fair disclosure of assets, income, property, and debts
• Fair (not one-sided)
• Signed by both parties and notarized

When Should I Prepare a Post-Nuptial Agreement?
There are no guidelines for when to prepare your post-nuptial agreement. Some couples create one when tensions are high, others put one into place to protect assets and future assets. Before agreeing to any post-nuptial document, have an experienced family law attorney review it—especially if you are feeling uneasy about it. You can always negotiate the terms prior to signing, but not afterwards. Most agreements will withstand a challenge in the courts, leaving you stuck with something you might not want or should not have agreed to.

Contact Your Attorney

Patricia Tichenor and Camellia Safi at the Law Office of Patricia E. Tichenor in Northern Virginia are experienced family law attorneys who can help you navigate the process of drafting and reviewing post-nuptial/post-marital agreements. Please contact us today—before you sign.

Grandparent Visitation Rights

Grandparent Visitation Rights<br>NOVA Estate Lawyers - Leesburg

Grandparent Visitation Rights
NOVA Estate Lawyers – Leesburg

Until as recently as 40 years ago, the legal concept of grandparent visitation rights did not exist. This is because parents have a fundamental right under the U.S. Constitution to make decisions regarding the upbringing of their children.

There are a number of reasons why grandparents might be denied visitation by family members, including a rift or estrangement within the family, divorce, death, adoption, incarceration, abuse, substance abuse, or chronic problems. In some cases, there may be actual safety issues for the grandchild. Communication problems, or control or boundary issues, can also be the cause for disallowing communication. In other cases, grandparents have been left to raise the grandchild, sometimes for years, but later find themselves confronted by the return of a parent seeking to reclaim their rights to the child.

Whatever the reasons, these life events can cause grandchildren to experience a sudden break and extended separation from a grandparent with whom they may have a strong bond, causing long-term damage to the child.

Several States sought to address the concerns these life events raise through statutes, applying a best interests of the child test to establish statutory visitation rights for grandparents, but with two different approaches being taken:
1. Restrictive Visitation Statutes, under which grandparents can seek visitation rights if the parents are divorced or if one or both parents are deceased.
2. Permissive Visitation Statutes, under which grandparents can request visitation rights even if both parents are still married and still alive.

However, as these State statutes became more commonplace, their constitutionality came under attack, leading to a 2000 United States Supreme Court Ruling which found such statutes could, in fact, be unconstitutional and thus unenforceable. Specifically, the U.S. Supreme Court ruled in Troxel v. Granville, that a Washington State statute was unconstitutional as written because it allowed a judge to substitute and/or overturn a parent’s decision regarding denial of visitation with a grandchild where the parent was also found to be perfectly fit to make such a decision. The Supreme Court held that parents have a fundamental right under the constitution to make the decision as to visitation between a grandparent and a grandchild absent a finding of unfitness on the part of the parent.

Because of the legal complexities surrounding grandparent’s rights to visitation, it is often best to try to mediate these issues when possible between parents and grandparents with the help of an experienced attorney-mediator. Through this process, a neutral third party can assist in creating a legally-binding agreement for all parties. If however, a satisfactory agreement cannot be reached, an experienced family law attorney should be employed to assist grandparents with preparing the most persuasive court pleadings possible in order to address why their specific case warrants the granting of visitation rights with their grandchildren.

Contact Your Attorney
If you have questions about grandparent rights, or wish to petition for rights in your own case here in Northern Virginia, it is good to have an experienced attorney by your side to walk you through the process. At the Law Office of Patricia E. Tichenor, P.L.L.C., Attorneys Patricia Tichenor and Camellia Safi specialize in all aspects of family law. Please contact us today.

Alimony, Spousal Support and Imputation

Alimony, Spousal Support and Imputation - NOVA Estate Lawyers – Leesburg, Virginia

Alimony, Spousal Support and Imputation
NOVA Estate Lawyers – Leesburg, Virginia

Many issues can come up during the course of a divorce, one of which is imputation of income. For most people, this is not a common term, although it can be a common problem, so let me explain it.

When two people divorce, one of the considerations is the payment of alimony or spousal support. Alimony typically refers to what parties agree to pay each other under a private agreement. Spousal support typically refers to what the court orders one spouse to pay the other. These terms, however, are often used interchangeably to mean the same thing.

In Virginia, when trying to determine whether alimony or spousal support will be an issue, each spouse must provide proof to each other of their gross incomes from all sources, which is then considered by their attorneys during settlement negotiations or is otherwise submitted to the court at trial. The court looks at the financial means and income of each spouse and weighs the relative need of the spouse seeking support against the relative ability of the other spouse to pay such support in light – with gross income being a significant factor in the consideration, along with the employment history, training and education, ages, and health of each spouse. If the court finds a need and an ability to pay, it will order spousal support.

Imputation of income can be imposed against both the paying spouse and the non-paying spouse, depending on the circumstances, to include:

(1) When the spouse ordered to pay spousal support decides to quit his or her job or takes a lower paying job in an effort to undermine his or her ability to pay support and avoid continuing to pay support. The paying spouse may think, once their support payment is recalculated based on their “new” income, they can simply return to full-time work at their higher income level and “beat the system.” A spouse may also be imputed his or her income from a former job if the spouse is fired from that job due to his or her own misconduct, thereby being the one to cause a decrease in the ability to earn a higher income.

(2) When a spouse asking to be paid support refuses to obtain employment or takes a lower-paying job in order to increase the amount of support they claim to need, or, gets fired from a job due to his or her own misconduct at the job, thereby being the one to cause a decrease in the ability to earn a higher income.

In these instances, the court can (and often does) impute income when determining the proper support amount or deciding whether modification of an existing support amount is proper.

Let’s look at an example of imputation

Let’s say one spouse is an accountant and previously brought in a salary of $75,000, but now has decided to spend the day on the couch, or they willfully reduced their work schedule to part time in order to avoid paying alimony or seek a reduced payment. Or another spouse has decided not to look for work in order to receive a supporting alimony payment. (Note that each spouse is capable of working and not restricted from working. They voluntarily chose not to, thinking it would be to their financial advantage.)

If it is determined that the spouse is capable of working, the judge will look at the spouse’s qualifications, work history and market conditions to then determine a reasonable income that person should be making. In other words, the judge will impute, or assign, a specific earnings amount. The court can then order a spousal support payment based on the imputed income as a matter of fairness or to punish the dishonest spouse. One cannot escape the responsibility of alimony payments or seek to appear unemployable to obtain a higher amount of spousal support by simply choosing to leave their job.

However, as an exception, if circumstances out of their payor’s or recipient spouse’s control cause him or her to lose their job or require a reduction in income, the court may redetermine alimony amounts, or impute a higher income amount to the other spouse. In any case, imputation will not occur without the party in question being heard by the judge.

In addition, the court can also award remedial support to assist with a spouse who is obtaining education and training to improve their earning capacity. That spouse is then expected to sincerely follow through with that training, and then seek gainful and higher-paying employment.

Contact Your Family Law Attorney
Divorce is never easy, and many people have questions, issues or concerns that arise even after the final divorce papers are signed. Imputation is a highly complex issue and best handled in court or by agreement with the input of an experienced family-law attorney. That is why the Law Office of Patricia E. Tichenor, P.L.L.C. is here. Attorneys Patricia Tichenor and Camellia Safi specialize in family law and can help guide and advise you before, during and after your divorce proceedings. Contact us today.

The Law Office of Patricia E. Tichenor, P.L.L.C.
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(703) 669-6700

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