Author Archives: Nova Estate Lawyers

Common Divorce Questions You’ll Want to Ask Your Attorney

meeting with attorney

Common Divorce Questions to Ask Your Attorney | NOVAEstateLawyers.com

Marriages can sometimes end amicably, making divorce a relatively simple and clean process. However, many divorces can be painful, expensive, and complex.

Once you’ve agreed to divorce, you and your spouse will have to navigate the murky waters of settlement agreements, court documents, alimony/spousal support arrangements, and child custody/support, if you have minor children. To ensure you’re following the proper legal procedures – and that you have a positive and mutually beneficial outcome – you should seek the services of a qualified divorce attorney.

You can start this process by setting up an appointment with an experienced divorce lawyer in your local area. Your attorney will act as your guide and advocate, and the initial consultation is the best time for you to clear up any uncertainties or concerns you might have. Here are some common divorce questions you’ll want to ask when you meet with your attorney.

1. Are we eligible to file for divorce right now?

According to Virginia’s divorce laws, couples filing for a no-fault divorce must have been separated for 12 full months if they have minor children, or six full months, with no minor children and a signed settlement agreement. However, the rules and timelines are different if you are filing for an at-fault divorce on grounds such as adultery, cruelty, or desertion. Your attorney will be able to tell you how soon you can file for divorce.

2. Who will get custody of our children?

For couples with minor children, determining custody arrangements can be one of the messiest parts about divorce. If you and your spouse can’t reach an agreement on your own, a judge will have the task of deciding what’s in the best interest of your minor child(ren). Many factors are considered here, so you’ll want to ask your divorce attorney what your options are regarding custody, and what a judge will take into account. Your attorney can help you understand the most likely outcome given your unique situation, and can guide you in choosing which battles to fight and which to concede.

3. Do I have to pay (or will I receive) alimony/spousal support?

The amount of spousal support you may request (or will have to pay) is highly dependent on your individual circumstances. Your custody arrangements (if minor children are involved) and who earns the majority of income in your household can have an effect on your outcome. Ask your divorce attorney early on what you should expect to pay or receive, so you can plan your finances accordingly.

4. How do we split our assets?

If you and your spouse did not sign a prenuptial agreement, you may not know how to fairly split your assets in your impending divorce. Dividing marital property can be complicated, and if you and your spouse can’t reach an amicable, mutually beneficial agreement, you may need to bring this question before a judge. If there is a dispute over who should receive which assets, your attorney can help you better understand your chances of a favorable ruling.

5. What should I expect during my divorce hearing?

If you haven’t been through a divorce before, the idea of appearing before a judge to sort out your issues could be intimidating. Ask your divorce attorney what to expect in the preparation of a hearing, including what information you should have ready to present. Although no two cases are alike, your divorce lawyer should be able to provide you some idea of what will occur.

6. Do we really have to go to court?

A no-fault divorce can result in an amicable split without any divorce hearings in court. The first step in this process is drafting a marital settlement agreement. This document requires you and your spouse to decide how you will divide property, who gets primary custody, and the amount of spousal or child support to be paid, if any is needed. An experienced divorce attorney can help you craft this document and review it to ensure it’s fair for both parties.

Contact the Law Office of Patricia E. Tichenor for help with your divorce.

Whether you’re just beginning the separation process or you’re ready to file for divorce, the Law Office of Patricia E. Tichenor can help. We’ve spent nearly two decades helping Virginia residents with settlement agreements, divorce cases, and other family law matters. Contact us to discuss your situation and begin the divorce process.

Tips for Drafting Your Settlement Agreement

couples' hands with divorce settlement agreement between them

Divorce Settlement Agreement Tips | NOVAEstateLawyers.com

If you and your spouse have agreed to file for a no-fault divorce, you may be wondering where to begin, from a legal standpoint.

In the Commonwealth of Virginia, filing for this type of divorce requires you to be legally separated from your spouse for a minimum of one full year. However, if you have no minor children, you may file for divorce after six full months of separation, provided that you and your spouse have signed a valid settlement agreement.

What is a divorce settlement agreement?

A divorce settlement agreement, also known as a separation agreement, a marital settlement agreement, a separation and property settlement agreement, or a custody, support, and property agreement, is a legal document defining how you and your spouse plan to divide your assets and debts. It also outlines any specific terms you and your spouse mutually agree to abide by during and after your divorce, including spousal support (if applicable) and any custody, support, and visitation matters (if you have minor children together).

One key advantage to a settlement agreement is that you and your spouse can divorce on your own terms, without bringing any nasty details into the courtroom. In a no-fault, uncontested divorce case, a judge can simply review your agreement and incorporate its terms into your final order of divorce. It may also help speed along the already-lengthy divorce process by eliminating the need for multiple court appearances.

How to draft your settlement agreement

Even for the most amicable divorcing couples, it can be difficult and painful to draft your settlement agreement, as it forces you to confront the end of your marriage. Below, we provide a few tips to help you make the process smoother and easier.

1. Start your discussion about the agreement from a calm emotional place, in a neutral location.

If you and your spouse try to discuss the terms of your settlement agreement when you are emotionally charged, or if you’re in a place that feels uncomfortable (such as your former marital home), you may find it difficult to make much progress. Schedule a time and location with your soon-to-be ex – just like any other professional meeting – so you can both mentally prepare for the discussion ahead.

2. Get a good picture of your individual and joint assets.

Every bank account, credit card, loan, mortgage, lease payment, retirement account, property, vehicle, and valuable asset you own will need to be listed in your settlement agreement. Preparing a thorough list of these accounts and assets, including any that you own separately from your spouse, will make it easier to go through them and decide what to do with them moving forward.

3. Agree on your date of separation.

The date of separation listed in your agreement determines when you and your spouse can officially file for divorce. Your date of separation does not necessarily have to be the date you or your spouse moved out of your marital home – it can simply be the date you had a conversation in which you agreed to seek a divorce. However, if you are still under the same roof, be sure to specifically state in your agreement that you are living “separate and apart” (i.e., separate rooms and engaging in behaviors that suggest you are a couple).

4. Know what you want, but be prepared to compromise.

Drafting a settlement agreement is a negotiation. You do not have to sign any agreement that you feel is unfair, and you have a right to ask your spouse to consider different terms. However, understand that you will likely not get everything you want – and neither will your spouse. It’s important to know going into this discussion what you are willing to compromise on, and where you want to stand firm.

5. Consult an experienced attorney.

While it is possible to draft a settlement agreement without legal help, an experienced attorney understands the ins and outs of your home state’s laws regarding separation and divorce. Without consulting a family law professional, the language in your settlement agreement may inadvertently put you at a disadvantage when you begin your divorce proceedings.

To play it safe, we highly recommend hiring an attorney to help you draft your agreement. At a minimum, you should ask a legal professional review the one you and your spouse drafted before you notarize it.

The Law Office of Patricia E. Tichenor has nearly two decades of experience helping Virginia residents with their family law matters, including settlement agreements and divorce cases. Contact us to discuss your circumstances so we can help you take this important step in your separation.

Do I Really Need a Divorce Lawyer?

divorce dictionary entry with two rings

Do I Need a Divorce Lawyer? | NOVAEstateLawyers.com

Divorce can be one of the most stressful events in your life, from an emotional, financial, and legal standpoint. For this reason, if you need to file for divorce in Virginia, it’s recommended that you do so with the help of an experienced divorce lawyer – especially if you and your spouse have minor children together.

There are some cases in which a DIY divorce could be possible, with a little DIY legal help. However, you may want to consider the benefits of retaining an attorney first. Here’s how to decide what’s right for your situation.

When should you hire a divorce attorney?

Though it’s always advisable to hire a divorce lawyer, it is especially important to do so when you’re in a complicated situation related to finances, custody of children, or other sensitive legal matters with your spouse.

Here’s when you should hire a divorce lawyer:

  • You own a business with your spouse: It can be difficult to figure out how to properly divide assets and ownership of a business, so a divorce attorney will be invaluable. You’ll also need appraisers to assess the business’ worth, and possibly consultants.
  • You expect a child custody battle: If you expect your spouse to challenge you on custody arrangements for your minor children, you’ll likely need a divorce lawyer to represent you in the case.
  • You have significant assets: It will be much harder to divide assets if you and your spouse have more than one bank account, properties, vehicles, and other assets that need to be fairly divided. An attorney can help represent you and your needs in court.
  • You were the victim of domestic abuse: A spouse who is verbally or physically abusive could intimidate or coerce you into a divorce deal that is unfavorable if you choose a DIY divorce. An attorney can be your voice and advocate.
  • You or your spouse are/were in the military: A military divorce can be much more complex. A lawyer can help with the division of military pension, benefits, and more.

If you’re at all unsure of the legal process involved for filing for divorce in Virginia, your best bet is to hire a divorce lawyer. The professional will be your guide throughout, including helping with paperwork, explaining the process, and helping you understand what you can expect at each stage.

When can you use DIY legal help for your divorce?

Not all divorces are bitter, nasty battles. Sometimes a mutual decision to split with a spouse can be amicable and both parties agree to work out the terms of their divorce on their own. If this is the case for you, you and your spouse may be able to represent yourselves (also known as appearing pro se) in your divorce case.

Here are a few scenarios in which a DIY divorce could be feasible:

  • You have no children, or no minor children: With no child custody and visitation issues at stake, the divorce process may be simpler for you and your spouse. You may be able to lean on the support of a mediator, who can help decide what’s fair for both parties
  • You expect an uncontested divorce: If you and your spouse can amicably divide your assets and debts, you may wish to create a divorce settlement agreement upon separating. Once you meet Virginia’s separation period criteria, you may then file for an uncontested divorce. If you go this route, a DIY legal coach can help you through the required paperwork and filing steps, so you can feel prepared to represent yourself in court..
  • You have limited funds: Not everyone can afford to retain a divorce lawyer throughout their case. However, DIY legal help can be an affordable option if you require assistance. You’ll get the help of an attorney, the paperwork you need to fill out, file, and document, and guidance.

Consult an experienced family law attorney

No one should have to go it alone in divorce proceedings. A divorce lawyer is meant to help you navigate a stressful and emotional situation. Even if you are unsure whether you need an attorney for your divorce case, it is always advisable to consult with a legal professional before filing any court paperwork.

Remember, a DIY divorce is possible in certain circumstances, but having the help of an attorney is indispensable. My Legal Case Coach, a division of the Law Office of Patricia E. Tichenor, makes it affordable to get the DIY legal assistance you need, so you can get through your divorce without creating additional hardship for yourself.

If you’re planning to file for divorce in Virginia and would like to hire an attorney, contact us to learn how we can help.

You’ve Been Named as Estate Executor – Now What?

last will and testament document

An Overview of the Virginia Probate Court Process – NOVAEstateLawyers.com

If you’ve been named as executor of your loved one’s estate, you will serve a key role in the probate court process, which is how assets of a deceased individual’s assets that pass through a will reach any named beneficiaries therein.

Probate is necessary to ensure, first, that a decedent’s final debts and expenses are paid, and, second, that the beneficiaries named in the will receive their inheritance. Under court-supervision, an executor is responsible for overseeing this process.

Executorship is a big responsibility, and it can seem especially overwhelming during this already difficult and painful time for you and your loved one’s other living relatives. This step-by-step guide will help you understand the probate court process in Commonwealth of Virginia, including the initial forms to file and how to prepare for your meeting with the probate court clerk.

Note: This guide covers the basic probate process when the decedent (deceased individual) left a valid last will and testament. If your loved one died intestate (without a valid will), you should consult with an experienced probate / estate planning attorney for specific guidance related to your particular matter to understand the probate process for an intestate estate.

1. Determine which court forms you’ll need and where to file them.

With a few exceptions, Virginia’s probate process is controlled by required PDF court forms issued by the Virginia Supreme Court.  Some Circuit Courts also have their own customized, specific forms for their local Court, so it is always smart to contact your local Circuit Court to ask for any specific website address that they may have to link you to their local forms.  In Virginia, Probate Matters are under the supervision of the Circuit Court in the city or county where the decedent resided at the time of his or her death, especially if they owned property in that city or county.  However, if they did not own any real estate and died in a hospital, then there may be grounds to file for probate in the city or county where they died. Each Circuit in Virginia has an arm of its court called a Commissioner of Accounts, who handles the ongoing supervision of the filings with the Court.

If your loved one owned more than one residence in Virginia, you’ll file in the local court of the city in which they last resided. You’ll also need to record a certified copy of the original will in the city or county where their other properties are located.  However, real estate itself does not go through Probate automatically in Virginia, and it is prudent to contact an experienced Probate attorney to determine how to handle any and all real estate of the decedent before you file anything with a local Circuit Court related to the probate process.

After you consult an attorney, to ensure you know the right next steps and what asserts will actually need to be reported to the Circuit Court, you (or your attorney) locate the applicable “Forms for Decedent’s Estate” on the appropriate local Circuit Court’s website needed to begin the qualification process to serve as Executor and prepare for the initial reporting process for the assets that will flow through your loved one’s Probate Estate.

While there are several optional forms you can file (including a waiver of executorship affidavit, if you wish to decline your duties), the most common forms you initially need to prepare are as follows:

  • Probate Information Form
  • List of Heirs
  • Notice Sent to Heirs and Beneficiaries
  • Probate Tax Return Form

You will need to prepare the forms above before your first meeting with the probate clerk at the Circuit Court where you are filing (see Step 2).  Some local Courts, like Fairfax Circuit Court’s Probate Division, will actually help you with all these forms as long as you call them to schedule an appointment with their office.  Appointments can take 2 months or longer to schedule as this Court is one of the busiest in the Commonwealth. This is why it is best to contact the local Probate Clerk of the Circuit Court where you believe you will be filing to ask them about their specific process and how soon you may schedule a qualification meeting with them.

2. Schedule a qualification meeting with the local probate clerk.

Once you have completed the forms from Step 1, you will attend an initial qualification meeting to be sworn in by the Probate Clerk to serve as Executor for the Estate.  You may also need to obtain a bond, if bond has not been waived in the Will or if you are not a resident of Virginia, so make sure you know what is expected of you by the Court before this meeting (see Step 3). You also must bring a valid driver’s license or passport as well as your checkbook to pay any applicable filing fees and initial probate taxes. Once you are qualified, you can then reimburse yourself from the Probate Assets that you will be located, depositing, and managing under a new bank account called a Probate Bank Account.

3. Apply for a probate bond and appoint a local registered agent (if you’re a non-Virginia resident).

If you plan to be the Executor of an estate but are not a resident of Virginia, you must apply for a probate bond, which is local insurance company that guarantees your services Executor.  You’ll also need to appoint a Virginia resident to serve as a local registered agent for you, using a Consent of Non-Resident Fiduciary form.  Sometimes, if you hire a local Virginia attorney to help you, they can agree to serve as your local agent in Virginia for this purpose.  Be aware that if you are a convicted felon or have filed for bankruptcy, you may not qualify for a bond and may also have to resign to serve as the Executor in favor of one of the alternate Executors named in your loved one’s Will.

4. Get a tax identification number from the IRS and set up a probate bank account.

At the end of your initial qualification meeting, the Court will issue you what is known as a Letter of Appointment (once known as Letters Testamentary).  You should obtain at least 6 certified copies of these in addition to the 2 free certified copies given to you by the Court, because you will need to provide them to banks, taxing authorities, and more during your service as Executor.  You will then be able to go to IRS.gov and obtain a tax identification number called an EIN that you will use to open up the Probate Bank Account in which to manage all the cash assets of the Probate Estate.  You cannot open such an account without the EIN.  This account will be used to pay debts and other estate-related expenses. Any remaining money will eventually be transferred to the beneficiaries from this account.

5. Determine whether you need to file additional forms based on the size of your loved one’s estate.

During Step 1, you may learn that the Estate you are handling qualifies for something called Expedited Probate (e.g., you are the sole beneficiary-surviving spouse and Executor, and assets passing to you thru the Will are $25,000 or less in value) or  Small Estate Treatment (e.g., asset involve only bank accounts valued at less than $50,000). If the decedent’s estate does qualify for such treatment, you will be done with Probate. You may simply need to fill out a special affidavit form to complete the court process.

If your loved one died with a larger estate, there will be several more steps and forms to file. At this point, we highly recommend speaking with an experienced estate planning attorney to help you complete the probate court process.

Your attorney can guide you through the remaining steps you’ll need to take as an estate executor and potentially help you reduce probate costs. He or she can also help you fill out the proper forms for your situation and keep the process moving to ensure your loved one’s estate distributions are handled efficiently.

Our law office can help with your probate court matter.

The Law Office of Patricia E. Tichenor, P.L.L.C. been serving the Estate Planning and Probate needs of Northern Virginia families for more than 15 years. Contact us today for guidance on honoring your loved one’s wishes as the executor of their estate.

How Do I Become a Minor Child’s Legal Guardian?

guardian holding a young child's hand

How Do I Become the Legal Guardian of a Minor Child? NOVAEstateLawyers.com

Legal guardianship is a very common family law topic in Virginia. When an individual is appointed as a legal guardian, they are recognized as having the legal authority and responsibility to act in another person’s best interests, on that person’s behalf.

While you may seek to become the legal guardian of an adult child or relative who is incapacitated or otherwise unable to make legal decisions for themselves, this post focuses on the process of seeking guardianship of a minor child. Here’s what you need to know about legal guardianship in the Commonwealth of Virginia.

What are the rights and responsibilities of a legal guardian?

As a legal guardian of a minor child, you are legally responsible for that child’s safety and well-being and must manage his or her personal affairs. This typically involves assuming physical custody of the child from their natural parents, and making important decisions regarding their education, care, health, discipline, finances, and more. In other words, a prospective legal guardian must be able to provide a suitable and safe permanent residence for the child in question, and be able to provide for his or her basic needs.

Legal guardianship is not the same as adopting a child. Assuming the child’s natural parents are still alive and consenting to the guardianship arrangements (i.e. not having custody revoked as an unfit parent), their parental rights are generally not terminated. They often still have the right to participate in the decisions made by a legal guardian on behalf of the child, even if they are not physically present. This being the case, the child’s natural parents may still be involved in his or her financial affairs, including management of the child’s estate.

If there are financial difficulties for the parents and/or the legal guardian in providing for the child, the Court may or may not approve a request for relief. For example, the Virginia Kinship Guardian Program (KinGap) offers eligible families financial assistance to guardians to facilitate the care and maintenance of a child in their extended family.

Common reasons to appoint a legal guardian for a minor child

In most cases of legal guardianship, a minor child’s natural parents select the guardian(s) to ensure continued care and safety of that child when they are unable to do so themselves. A few common reasons where a legal guardian may have to step in include:

  • The death of one or both natural parents (this is typically addressed in the parents’ will)
  • Long-term illness of one or both natural parents
  • Incarceration of one or both natural parents
  • Addiction recovery/rehabilitation of one or both natural parents
  • Other extenuating circumstances wherein the natural parents’ home is unsafe or unfit for the minor child (e.g. civil or political unrest in their home country)

If parents have not appointed a legal guardian for their minor child in these circumstances, it’s possible that the child could go into the foster system. Legal guardianship, particularly by a relative of the child, is generally preferred to foster parents: Research shows that children who live with relatives are more likely to enjoy their living situation and feel loved/cared for, and are less likely to have behavioral issues than children who are placed into the foster care system by the state with non-relatives.

How to petition for guardianship of a minor child

If you are petitioning to be appointed as the legal guardian of a minor child in Virginia, here are the steps you will need to take with your local Circuit Court for an uncontested case*:

  1. Complete, sign, and notarize a Petition for Appointment of Guardian(s) of a Minor. This form establishes your intent and reason(s) to assume guardianship of the minor child and confirms that you are a suitable caregiver. If natural parents are living, they should also sign and notarize this form. Minor children over the age of 14 may sign the Petition for their own guardianship appointment as well.
  2. Obtain completed Exhibits from the child’s natural parents, including a copy of the child’s birth certificate and a letter of consent from the natural parents supporting your Petition (or certified copies of the parents’ death certificates if deceased).
  3. Complete, sign, and notarize a Consent Order for Appointment of Guardian(s) of a Minor. Be sure to leave space for a judge to sign and date the order. Living natural parents and minors over the age of 14 should also sign and notarize this form.
  4. Complete a Cover Sheet for Filing Civil Actions (Form CC-1416). Also known as the Virginia Civil Cover Sheet, this form is required to file any civil case in a Circuit Court in the Commonwealth of Virginia.
  5. File all of the above forms in person with the Civil Court where the minor child currently decides, along with the Court filing fee. If the child is not yet a Virginia resident, you may need to first file a Petition in a court where the child resides, requesting permission to relocate them to Virginia.

*Uncontested guardianship cases mean that any living natural parents support the appointment of a legal guardian for their child. If the natural parents do not give their consent, there may be additional Court hearings and steps in the process. Please consult with a family law attorney to understand the steps in a contested guardianship case.

What if the child is not a U.S. citizen?

Assuming legal guardianship of a minor child whose parents who are living abroad is not an uncommon scenario here in Virginia. The Court documents and process are roughly the same. However, in your petition and in the natural parents’ letter of consent, you will need to specifically address the circumstances in the parents’ country of residence that render it unsafe or unfit for the minor child to live there. You may also need to submit additional Exhibits as required by the Court.

Ask an experienced family law attorney

While it is possible to represent yourself in court when seeking appointment as a child’s legal guardian, working with a family law attorney can ensure that you don’t miss any important steps in the legal process. Our law practice has been helping Northern Virginia families with guardianship cases since 2001, and we are dedicated to working toward the best possible outcome for the child, the parents, and the guardian.

Are you seeking guardianship of an incapacitated adult child or relative? We can help with that, too. Contact the Law Office of Patricia E. Tichenor for more information.

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

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