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.

What You Need to Know About International Custody and Child Abduction

What You Need to Know About International Custody and Child Abduction

What You Need to Know About International Custody and Child Abduction
NOVA Estate Lawyers – Leesburg, Virginia

Child abduction is one of the most heartbreaking events than can happen to any parent and is one of the most emotionally-charged areas of family law. It can also involve diplomatic involvement, especially when different countries are involved.

Some countries may protect a parent from being forced to return a child if the abducting parent is a citizen of that country and takes the child to travel there, then fails to return the child to the other parent at the end of the visit. These countries refuse to sign treaties that allow them to have such international custody matters determined by The Hague or by the domestic courts of the country that was the child’s “home state” prior to being removed by the other parent.

Personal experience for the Law Office of Patricia E. Tichenor, P.L.L.C has been in dealing with the country of Brazil, which is only a signatory to the New York Convention, but still fails to facilitate the return of children who are essentially abducted away from the United States, even if those children are U.S. citizens.

There are several conventions and treaties, including the 1980 Hague Convention on the Civil Aspects of International Child Abduction, but a country unwilling to sign or to have its government ratify the ground rules for international abduction and custody fights means it can be a serious emotional and financial battle to gain return of a child once he or she is removed from the United States.

International Kidnapping is a Federal Crime
The International Parenting Kidnapping Crime Act 1993 “makes it a federal crime for a parent to remove or attempt to remove a child from the United States, or retain a child outside the United States with intent to obstruct another parent’s custodial rights.” However, prosecution of the kidnapping parent and the return of the child to the United States can be different matters. “Although the parent who removed the child from the United States is generally eligible for formal extradition because they are charged with a federal crime, the child is a victim of international parental kidnapping and often not eligible for formal extradition.” (Source: The United States Department of Justice). The child’s return is often settled through negotiation.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction also resulted in response to the increasing occurrence of parental child abduction and has resulted in different approaches to interpreting the key concepts of the Convention, thus prompting discussion of the issue.

What to Do if You’re Involved in a Parental Kidnapping
If your child or children have been kidnapped by the other parent, we urge you to take action right away. Talk to an attorney. Talk to us. We are experts in family law issues. We need to begin processes immediately and will counsel with you to set the necessary steps in place.

For this, or any family law issue, feel free to contact Attorneys Patricia Tichenor and Camellia Safi at the Law Office of Patricia E. Tichenor, P.L.L.C. Please contact us today.

Why Parenting Agreements Are So Essential

NOVA-Estate-Lawyers_Why-Parenting-Agreements-Are-So-Essential

Why Parenting Agreements Are So Essential
NOVA Estate Lawyers – Leesburg, Virginia

Even though you are divorced or divorcing your significant other, you both will remain tied together as parents for the rest of your lives. That means that working together for the best interest of your child or children, no matter what your own differences are, as the Honorable Loudoun County Circuit Court Judge Burke F. McCahill wisely reminds parents in his courtroom: “You are getting a divorce from each other…you are not getting a divorce from your children.”

One way to help ensure a better outcome for your offspring is to establish a written parenting agreement. In this agreement, you lay out the terms for sharing parental rights and duties and how each parent will maintain a strong bond with and play a significant role in your children’s lives. Typical agreements include terms about where the child will live (physical custody), visitation schedules, legal custody, schedules for holidays, birthdays and vacations, contact with other relatives, and how changes to the agreement will be handled.

Avoid the Judge
It is almost always best for parents to work out a parenting agreement for their children outside the courtroom. If, however, an agreement cannot be reached, a judge may be called upon to make a ruling. Delegating these important decisions to a judge who knows very little about you or your children, even after hours of court hearings, is rarely in your children’s best interest.

Consider the Child’s Point of View
Unless a parent is truly unfit, parenting agreements should not be used to marginalize one parent’s role in favor of the other. Keep in mind that, until your separation and divorce, your children have had the opportunity to see each parent on a daily basis or during weekends. You must consider how to limit the impact the divorce will have on a child’s interaction with each parent and avoid alienation of either parent, whether directly or indirectly.

Limit Legal Labels
Consider using ordinary language in your agreement rather than lawyer-speak or labels. Ask yourself if it is really necessary to refer to one parent as “the primary physical custodian” while the other is merely “the visiting parent.” Instead, you could use the term “parenting time” when referring to the time each of you will have with your children, even if it is necessary to identify just one of your homes as the “home base” for purposes of school registration and attendance or claiming your children on tax returns.

Be Flexible
Create a framework that allows for flexibility with each other. Ask yourself: “If I was the one being asked to agree to this parenting schedule, would I think it was fair and in the best interests of the children?” As children grow up and develop interests, remain flexible to changes in parenting schedules; you may not be able to keep to the original “typical custodial/visitation schedule.” Consider also including a “Right of First Refusal” that allows for a parent who misses schedule parenting time to make up dates – assuming that the missed parenting time was due to circumstances outside that parent’s control that caused a need for rescheduling.

Many divorcing parents are able to work out parenting agreements between themselves. Others rely on legal counsel or working with a mediator. As a last resort, a few must submit to a judge to determine division of parental responsibilities and visitation. The resulting decision of a judge can and often does frustrate both parents as being not ideal for themselves or their children – not to mention the thousands of dollars spent to obtain that decision from a judge that could otherwise have been spent on the needs of your children.

Whether you draw up your own agreement, or have questions regarding a parenting agreement, we welcome your contacting at the Law Office of Patricia E. Tichenor, P.L.L.C. for guidance. Attorneys Patricia Tichenor and Camellia Safi are here to assist in drafting an agreement that balances the concerns surrounding your divorce while ensuring your children best interests are not harmed in the end. Please contact us today.

Divorce 101 in Virginia

Divorce 101 in Virginia

Divorce 101 in Virginia
NOVA Estate Lawyers – Leesburg, Virginia

Nobody likes divorce, but sometimes getting a divorce becomes a necessity, and apart from the emotional impact divorce imposes on families, there are a number of legal issues that need to be addressed. This is why it is always a good idea to speak with an attorney, like the Law Office of Patricia E. Tichenor, P.L.L.C, from the start of the separation and divorce process. Here are some of the basic topics to consider, or what we call Divorce 101:

Grounds
To get a divorce in Virginia, grounds, or the reason the court should grant a divorce, need to be established. There are five grounds in Virginia that include: adultery or sodomy outside marriage; conviction of a felony; desertion and cruelty; one-year separation (with minor children); or six-month separation (no minor children) with a signed Separation and Property Settlement Agreement.

Legal Separation
In Virginia, “separation” occurs when at least one spouse forms the intention to permanently separate from the other spouse and ceases to act as a married couple with his/her spouse to the spouse and the rest of the world around them. When this occurs, they are considered separated even if they have not yet signed a formal separation agreement. This typically can include living in separate bedrooms and possibly separate parts of the marital home and living as merely a roommate. It can but does not require that one spouse physically move out of the marital home. Upon separation, spouses should not engage in activities that could be construed to be them acting as a married couple, such as taking vacations together, expecting on spouse to cook or clean, etc.

Separation Agreement
A separation agreement is a contract between the parties that spells out each person’s rights and responsibilities during the separation through the divorce, and should include issues surrounding child support, custody and visitation; spousal support; and division of debts and marital property. The separation agreement aids in determining the terms of your separation and divorce, otherwise, a judge may decide them. It is in the best interest of all parties to outline an amicable separation agreement as soon as possible.

Child Custody and Visitation
To determine child custody and visitation, the courts look at the best interests of the child or children, taking into account a number of factors including: safety; maintaining meaningful and positive relationships with parents; minimal disruption to the child’s life; relationships with parents, siblings and family members; and a child’s preference if they are old enough to express an opinion. Parents are encouraged to work out a custody and visitation schedule and submit it to the judge.

A variety of visitation options can be considered, including “bird-nest” co-parenting. This allows the child(ren) to remain in the family home while the parents rotate in and out like birds alighting on the nest. When not living in the home, the alternate parent must reside in a separate residence. This approach works best with co-parenting agreements and with both parents living in close proximity to the family home.

Property Division
Since Virginia is not a community property state, each spouse does not automatically receive one half of the other spouse’s property. Instead, property is classified as “marital” or “separate.” Separate property refers to property acquired prior to the marriage, inherited or gifted, or proceeds from the sale of separate property. Marital property refers to property titled in both spouse’s names, and non-separate property acquired during the marriage. Property divisions can be outlined in the separation agreement, otherwise, the courts may divide property.

Spousal Support
The courts will generally not award spousal support to the party who has committed adultery so long as that adultery is proven by clear and convincing evidence to have taken place within less than 5 years from the date of separation and the non-adulterous spouse has not engaged in a sexual relationship with the unfaithful spouse after learning of the adultery. If denying spousal support could result in severe harm (sometimes called “manifest injustice”) to the spouse seeking it, even an adulterous spouse will be entitled to spousal support.

Contact Your Attorney
This post outlines the very basic elements of Divorce 101, but since each divorce is unique, it is always wise to contact an attorney. Each party should engage an attorney separately; we do not and cannot represent both sides in a divorce issue.

At the Law Office of Patricia E. Tichenor, P.L.L.C, attorneys Patricia Tichenor and Camellia Safi specialize in family law issues, including separation and divorce, please contact us today.

Child Custody and Relocation

The Law Office of Patricia E. Tichenor, P.L.L.C Virginia

Child Custody and Relocation
NOVA Estate Lawyers – Leesburg, Virginia

When two parents divorce, the issue isn’t just between the two; it involves the children. Mistakenly, many couples think that once the custody issues have been settled it will be smooth sailing from then on. That is not normally the case because many other issues can crop up as life’s circumstances change.

One of the more complicated issues we encounter at the Law Office of Patricia E. Tichenor is when one parent wants or needs to relocate out of state because of a job offer or marriage to someone who lives in another state, or a parent who will work outside the state where the existing custody order is issued.

A parent who wants to relocate must establish that the relocation independently benefits the child. There is no “unity of interests” approach in Virginia; just because a move benefits a parent does not mean it will automatically be deemed to benefit the child.

No court can prohibit a parent from moving. If he or she wants to move, it is a matter of their constitutional rights to associate with and live wherever and with whomever he or she likes. However, courts do retain the right to control whether the child moves along with that parent.

Factors a Court Considers in Relocation Impact
There is no simple black or white solution. To consider whether the relocation is in the child’s best interests, the courts look at these factors:

If the relocation will substantially interfere with the non-moving parent’s ability to maintain a strong bond with the child as it exists at present, the judge may not agree that it is in the best interest of the child to be relocated with the moving parent. Courts also consider the reason the relocating parent wants to move with factors that include being closer to extended family, employment opportunities and economic advantages.

Courts can also take into consideration the existing relationship between the remaining parent and the child. If there is little or no contact, judges are more likely to side with the relocating parent and the non-relocating parent will have less success in blocking a child’s relocation.

It should be noted also that under Virginia law, the burden of proving that the relocation will be in the best interest of the child lies with the relocating parent.

If it is deemed that the move is in the best interest of the child, modifications to the existing custody arrangement need to be put into place. These can include weekends, summer vacations, or other variations that allow longer visitation times in exchange for the reduction in frequency as not enabled by the farther distance.

Contact Your Attorney
At the Law Office of Patricia E. Tichenor, P.L.L.C., attorneys Patricia Tichenor and Camellia Safi specialize in family law and estate planning to assist people with family law issues. If you are seeking to relocate with your child or attempting to block a parental relocation,  contact us today.

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