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Divorce in the Military

Divorce in the Military

Divorce in the Military
NOVA Estate Lawyers – Leesburg, VA

Divorce laws vary from state to state, and are generally controlled by the statutes of the State where the parties last cohabitated as husband and wife. But, what if you are a member of the U.S. Armed Forces? Do the same rules apply?

When it comes to military divorces, special rules and requirements apply to U.S. service members and their spouses. Divorce in that situation can be controlled by both State and Federal statutes.

When serving active duty, the service member is generally protected from divorce proceedings under the Servicemembers Civil Relief Act (SCRA) that states that a service member cannot either be sued for or begin divorce proceedings while they are on active duty or for 60 days following active duty (at the court’s discretion). In addition under SCRA, a court can delay divorce proceedings during the time the service member is on active duty or for up to 60 days afterward.

Three Options of Where to File for Military Divorce

Prior to a divorce being granted, the court in which the case is filed must have both personal jurisdiction over the parties and subject matter jurisdiction over the specific area of the law involved (e.g., military courts do not hear divorce cases, and state courts do not hear military cases). “Jurisdiction” over the parties generally (or their last marital residence) will determine which court has the authority to make decisions regarding the divorce. For civilians, it is most often where they live; their state of legal residence. With military divorce, because a member of the U.S. Armed Forces can designate residency in state where they do not reside full-time while in active duty, determinations of “jurisdiction” often are controlled by where the spouse filing for the divorce resides, particularly if that is where the parties last cohabitated together as husband and wife. In some instances, where the real estate the parties own or where the children are being raised plays a significant role as well in deciding which court has proper “jurisdiction” over the case. Hence it is recommended to obtain a family law/divorce attorney to properly guide you on which state is proper or best to file in for the divorce.

For military members and spouses, divorce can be filed by one of three choices:

1. In the state where the military member is a legal resident;
2. In the place where legal residence of the spouse is established, even if that service member is stationed elsewhere;
3. In the state where the military member is currently stationed, whether or not they are a legal resident of that state.

Division of Military Pensions and Benefits

In the event of divorce, a military pension is subject to division between spouses and under the federal statute known as the Uniformed Services Former Spouses’ Protection Act (USFSPA). Depending on the state, it can be treated as sole or community property, and divided between or awarded to a spouse based on that state’s specific laws governing divorce. The USFSPA guides the court on how best to address issues like military pension, child support and spousal support.

Military spouses are also subject to the “ten year rule,” which allows a former spouse to receive direct deposit payment of his or her portion of the former service member spouse’s military retirement from the Defense Finance and Accounting Service (DFAS) so long as there was ten years of marriage that overlapped with ten years of military service.

As an example, if a couple were married for 15 years, with the military member serving for 8 of those years, the spouse would not be eligible for direct payment through DFAS, and s/he would then have to receive those amounts on a monthly basis from the military member spouse until paid in full. However, if a couple were married for 15 years and the military member served for 12 of those years, all payments would be by direct deposit from DFAS to the former spouse would be made by DFAS. A spouse cannot collect his/her portion of the retirement pay until such time as the retiree applies for it; therefore, some people put a specific time frame as to when to begin claiming/receiving benefits into their divorce settlement.

The maximum amount a spouse can receive of the military retirement income is 50%. If the payment also includes child support, the maximum combined amount deducted from the disposable retirement pay cannot exceed 65%. Both the military member and the spouse should be aware of the full value of the pension when settling a divorce.

Spouses of former military service members may also receive full medical, commissary and exchange privileges (full base privileges) in addition to pension benefits (as long as they don’t remarry) under the following conditions, sometimes called the 20/20/20 rule:

• The marriage lasted 20 years or more;
• The service member has 20 or more years of creditable service toward retirement pay; and
• There was a 20-year overlap of marriage and military service.

In addition, in cases of divorce, the ex-spouse of a military member is no longer a beneficiary of the Survivor Benefit Plan, as they were while married. This benefit must be addressed in the divorce settlement.

Determination of Alimony and Child Support

The military has specific rules for determining spousal and child support and may also require the payor-spouse to maintain life insurance covering these payments for a specified period. A divorced spouse will no longer qualify to take advantage of on-post military housing and will need to find housing elsewhere.

The court may enforce these obligations by:
• Court-order
• Garnishment
• Voluntary or Involuntary Allotment

Contact a Family Law Attorney Familiar with Military Divorces

Since there are special rules and regulations regarding a military divorce, it is best to seek legal advice before taking action. At the Law Office of Patricia E. Tichenor, P.L.L.C., attorneys Patricia Tichenor or Camellia Safi would be glad to provide representation in seeking your divorce or assist you with issues of child or spousal support. Located near INOVA Loudoun Hospital in Leesburg (Lansdowne), Virginia, we serve clients throughout Northern Virginia. Please contact us today.

Dealing with a Family Member’s Arrest

Dealing with a Family Member’s Arrest

Dealing with a Family Member’s Arrest
NOVA Estate Lawyers – Leesburg, VA

You’ve received that phone call where the loved one on the other end of the line says, “I’ve been arrested.” Now what do you do?

Remain Calm

The first recommendation is to remain calm. Your loved one needs your strength now, so help them calm down as well. Ask them to be respectful with the authorities but to let them know that they should invoke the right to remain silent and that family is going to retain an attorney for them. Assure them that you will work on their behalf. It is not the time for blaming, shaming, yelling or escalating the situation in any way. If you were present at the arrest, you yourself must be respectful to the police office but are not required to divulge any information to them or answer questions.

Learn the Details

Find out at which jail your loved one is being detained, and on what charge. Give this information to an attorney that you have hired to represent your family in this matter. Phone calls are recorded at the adult detention centers in Virginia if you loved one is calling you on their pay phone system, so absolutely nothing should be said by either of you about the facts surrounding the case; or anything else that could be incriminating to you or your loved one. Address only the matter or arranging for legal counsel and how your loved one is holding up.

You may or may not want to contact other loved ones. If you do, inquire as to their resources that may be able to help.

Know Your Rights and Those of the Police

A loved one who is arrested has: (1) the right to remain silent; and/or (2) the right to speak to an attorney. But he or she must tell the police (invoke) that they are exercising those rights if they intend to have them honored. If they start talking about the case, they may waive those rights simply by choosing to do so—even after first invoking them. No questions should be answered without the attorney present, regardless of whether the alleged crime is or is not a serious one. They should know that in questioning, the interview is either recorded, or the arrested party may be asked to sign a statement confirming that the interview record is accurate.

The police will most likely photograph the arrested person and take fingerprints. They may also legally take a DNA sample or swabs of the skin on the arms and hands. If they want urine, blood or dental impressions, it requires the permission of the person, unless the arrest is related to driving while under the influence of drugs or alcohol.

An arrested person can be held for up to 24 hours as a suspect or “person of interest.” After that time, they must be charged with a crime or released, unless a request for an extended incarceration is requested by authorities for 36 to 96 hours if the person is suspected in a serious crime. Those involved in acts of terrorism can be held without charge up to 14 days if arrested under the Terrorism Act.

After questioning, the police may release your relative either without charge or on bail (secured or unsecured by a bond). If bail is not granted, the person may have to remain in police custody until the family can obtain an attorney to file a motion with the court to have a bail amount set by a judge.

At an arraignment hearing, charges will be read and the bond amount and any conditions, such as the bond amount, will be set. If bail is met, the arrestee will be asked to sign a ”signature bond” that states that he or she recognizes his or her obligation to appear in court. You may help them pay the bail.

The information in this blog post pertains mostly to adults who are arrested. Some different practices may come into play with minor children. For example, the child may have the right to an attorney present during questioning, but not a parent. An experienced family law attorney who has also handled criminal law matters can help you ensure your loved one’s rights are protected.

Contact Your Attorney

Make contact with your attorney as soon as possible. Arrange for an attorney to help you with the immediate issues including representation during questioning and at the arraignment hearing. You attorney will also advise you as to the steps you need to take.

Do not sign a long-term agreement with an attorney until you know what the charges are and whether you will need their help long-term. Beware of lawyers who try to push you into an extended engagement immediately or want to rush you to a plea bargain.

Beware also of friends and family who try to give you legal advice. Stick to the licensed attorney’s recommendations. A criminal defense attorney, unlike a friend or family member, is the only one who can offer attorney-client protection for the statements made by the arrested person, and the only one who cannot be called to testify against the client as to what the client said about the events leading to his or her arrest. A family member is always open to being subpoenaed to disclose what the loved one shared. Thus, the reason to tell them nothing – even to you – and to save all discussions about their case for the attorney.

Gather Funds

You will need money to post bail or to pay attorney fees, so take action to gather the necessary funds. Criminal defense attorneys typically charge up-front deposits, and sometimes a flat fee, depending on the seriousness of the crime.

Don’t Feel Guilty

People from any family can get arrested, so don’t get caught up in feelings of guilt. Deal with the shock and begin the process of rectifying the situation as best you can. And be aware that others, including family, friends, neighbors, co-workers, etc., may act in an accusatory way or say things that might be hurtful upon hearing of the arrest. Don’t let them incite and distract you; stick to your plan and follow the legal advice of your attorney.

Contact the Law Office of Patricia E. Tichenor

Attorney Patricia E. Tichenor spent a number of years handling criminal cases while practicing family law. The Law Office of Patricia E. Tichenor, P.L.L.C. is often called upon to help with highly-emotional issues such as family member arrests, and can provide legal advice and representation in a caring and competent manner to families in Northern Virginia. If your loved one has been arrested, contact attorneys Patricia Tichenor or Camellia Safi today.

Protective Orders for Spouses or Children in Virginia

Protective Orders for Spouses or Children in Virginia

Protective Orders for Spouses or Children in Virginia
NOVA Estate Lawyers – Leesburg, VA

A protective, or restraining, order is a court-issued legal document designed to protect the petitioner from of violence, abuse and threats for a fixed period of time. It is designed to protect the safety and health of any person who is placed in fear or threat of bodily injury.

3 Types of Family Abuse Protective Orders in Virginia

In the Commonwealth of Virginia, there are three types of protective orders aimed at protecting spouses or children, including:
Emergency Protective Order
This type of protective order is requested in emergency situations and therefore can be issued by any court, Juvenile or Domestic Relations judge, or magistrate at any time of the day or night. It can also be requested by a law enforcement officer without notifying the alleged abuser. Expires at the end of the third day after issuance or the next day court is in session (whichever is later).
Preliminary Protective Order
This type of protective order is issued by a Juvenile and Domestic Relations Court when the petitioner shows proof that they are in immediate danger from the alleged abuser, who does not need to be notified prior to issuing the protective order. The petitioner must either provide an affidavit or testify under oath, and the order expires 15 days following the day it was issued or until a full hearing.
Full Protective Order
This type of protective order is issued following a full hearing, when the alleged abuser is given the chance to be heard in court. Its duration can last up to two years.

When protection is first issued, it is only temporary, and is called a PPO, or Preliminary Protection Order. It will include a date indicating when you must return to court, generally in about 15 days, at which time the judge will determine if a Full Protective Order is required. Both the petitioner and the abuser are asked to be present.

What a Restraining Order Can Do

A restraining order can:
• Order the abuser to cease contact with you or other people in your family, in person, by telephone, at home or work, or anywhere requested within the order.
• Demand that the abuser vacate the shared home
• Grant custody of minor children
• Order child support and spousal support
• Order payment for costs resulting from abuse, such as household bills, medical treatment, loss of earnings, etc.
• Order professional counseling for the abuser

How a Protective Order Can Help Victims of Family Abuse

All types of protective orders in Virginia can prohibit further abuse, prohibit any contact by the defendant with the victims of abuse, and remove the defendant from the home in which the victims live (without affecting the property’s title).

Preliminary and full protective orders can also grant the victims the sole use of a motor vehicle either owned by the victims or by both the petitioner and defendant (without affecting the vehicle’s title), as well as order the defendant to provide housing for the victims.

Do Not Hesitate to File a Protective Order

If you or your children are threatened, or if a member of your family or household harms you in any way, do not hesitate to file a petition against them in your local Juvenile and Domestic Division. However, as this legal document can only protect you if the abuser respects it, call 911 immediately if you feel you are in any type of danger.

Every day the media is flooded with another instance of family-related violence. Don’t let the next story be yours.

Contact Your Family Law Attorney

For information or any advice regarding family abuse or protective orders in Virginia, contact attorneys Patricia Tichenor and Camellia Safi at the Law Office of Patricia E. Tichenor, P.L.L.C. We can advise you on the best methods to keep yourself and your children safe, and on the next steps to take to ensure ongoing protection. Contact us today.

Navigating the Costs of Nursing Home and Long-Term Care

Navigating the Costs of Nursing Home and Long-Term Care

Navigating the Costs of Nursing Home and Long-Term Care
NOVA Estate Lawyers – Leesburg, VA

When you’ve worked a lifetime to accumulate wealth, you don’t want to lose it all due to a disability, prolonged illness or cognitive impairment such as Alzheimer’s disease. Since approximately 69% of the population aged 65 and older will develop disabilities before they die, and 35% will eventually enter a nursing home, reports the Family Caregiver Alliance, it is imperative to plan ahead.

The organization goes on to report that in 2010, about one in eight people age 85 or older (13%) resided in institutions, and by 2012, 1.4 million people lived in nursing homes nationally. Alarmingly, one in four people age 45 and up are not at all financially prepared if they suddenly required long-term care for an indefinite period of time.

Elder law and estate planning attorneys work with families to discuss techniques to protect families in the event that long-term care is necessary.

One method of protecting your financial security is to shift as much of the cost as possible onto a third party such as Medicare, Medicaid and private insurance. But be aware that Medicare does not cover the costs of long-term stays in nursing homes.

Long-Term Care Insurance
Another method is to purchase long-term care insurance. This is available to healthy individuals for potential coverage in the event that long-term care is required. However, this insurance can be costly, and therefore is not widely utilized.

Medicaid
A third option is Medicaid, the most likely to provide financial assistance. Qualifying for Medicaid is complicated, and may require an experienced attorney to help navigate its rules. For example, you may not be eligible if you carry assets above the allowance levels. Some of these assets can be used for debt reduction prior to applying for Medicaid. Medicaid also does not include assets like your home, car or personal assets in its qualification process. This allowable spending to purchase such items can reduce your cash assets and enable eligibility for Medicaid benefits. For example, instead of turning your money over to nursing home care, spend it on home improvements, a new car, or funeral arrangement prepayment, or use it to pay off outstanding debts.

Convert Assets into Income
Assets can also be converted into income, such as annuities, but specific requirements are needed in order to qualify for Medicaid planning. This again is where you need to speak to an estate or elder law attorney.

Transfer Assets

Some seniors pass along assets to their children or heirs early to preserve wealth and “spend down” their assets before applying. In order to prevent fraud in this area, Medicaid has implemented a five-year look-back transfer penalty law. To avoid a penalty, advance planning is a must. In fact, the farther ahead you plan, the more options you will have.

Create a Trust
The creation of an irrevocable trust can also help to preserve assets while allowing eligibility for Medicaid coverage. Select one person to act as your primary agent.

Set up Your Will
Leaving your money to a spouse can backfire when that spouse is in a nursing home or has developed a cognitive impairment like Alzheimer’s disease. The inheritance of assets may render them ineligible for government assistance such as Medicaid.

Consult with an Estate Law Attorney
What you don’t want to do is make a costly mistake. It is worth your while to speak with an estate law attorney to explore your options and select those that make sense for your particular situation. Again, planning early is the key—even if you are healthy now and don’t expect to need nursing home or long-term care in your future.

Contact The Law Office of Patricia E. Tichenor
Attorneys Patricia Tichenor and Camellia Safi provide estate planning legal services. They can help you navigate the complicated maze of nursing home and long-term care options available to you that will help you plan a secure future and protect your hard-earned assets. Contact us today at The Law Office of Patricia E. Tichenor.

Where to Store Your Important Records

Where to Store Your Important Records

Where to Store Your Important Records
NOVA Estate Lawyers – Leesburg, VA

With all the news about natural disasters like hurricanes, floods and earthquakes, it makes one think about how to store and protect important records like your birth certificate, will or power of attorney designation.

Keeping originals of these important records in your home may make them easy to reach, but may not be the best method for safekeeping them in the long run. Here are some alternatives to storing important records.

On Site
It is okay to keep one copy or original of your important documents on site in your home or office, as long as you choose a protected location for them. Place them into a waterproof, fireproof box or home safe that will protect them and enable them to be retrieved in the case of a fire or other disaster. Documents stored here can include: insurance policies, deeds, living will, will, powers of attorney, and trust documents, along with a list summarizing what you have for open credit cards accounts, other lines of credit, all investment and banking accounts, other assets, and any pre-paid burial arrangements or wishes regarding burial.

Safety Deposit Box
Storing the original documents offsite in a safety deposit box at your banking institution may add an extra layer of protection. Items like your birth certificate, CDs, legal agreements, marriage/divorce/ adoption documents, prepaid burial plots and funeral contracts, property deeds, personal property inventory and documentation, vehicle titles, and stocks and bond certificates should be stored here. Only store your original will there if one or more of your named Executors is a signatory and authorized to access the box without you being present. Otherwise, do not store your original will here, as your safety deposit box will be sealed upon your death; a copy is fine. Documents can also be scanned into a flash drive that is kept in the safety deposit box.

With Others
Depending on how likely it is that you will update or make changes to your estate plan within the next 5 years, there are certain documents you should both maintain photocopies of with your attorney and share photocopies of with your first alternate designated agent(s) or executor(s) or trustee(s), along with instructions. You may also want to share photocopies of your financial and medical powers of attorney, financial plan, burial instructions, and perhaps a second safety deposit box key, along with the name and contact information of your attorney and executor. Another approach is to let a trusted friend or family member know where you are keeping these items in your home should you die. At the Law Office of Patricia E. Tichenor, P.L.L.C., we only retain a photocopy of the final signed documents for our clients, as we disfavor the practice often engaged in by other law firms of keeping clients’ originals in storage with our firm. We strongly believe our clients should be given all originals of their documents to take home after signing.

In the Cloud
Important documents can be scanned and stored on a cloud storage provider such as Amazon Cloud Drive, Google Drive, Dropbox or Microsoft SkyDrive as well as in an external hard drive. In the case of a natural disaster, however, these documents can only be accessed through a powered device; if electricity is lost, they may not be readily accessible, so keep a hard copy on hand as well.

Wallet Card
You should always carry information on a device or in a purse/wallet of who to contact in case of emergency. You may be unconscious, or heaven forbid, dead, and unable to give instructions. Items to keep in your purse/wallet include your driver’s license and personal identification cards, health insurance cards, medical information such as your blood type, an organ donor card and any specific medical information, including the contact information for your doctors. However, do not carry your social security card in your wallet, or any document containing your social security number. Photocopy both sides of any documents (including credit cards) kept in your purse or wallet, and keep those copies at home in a safe place. Many folks now store such photos on their mobile devices, stored in the cloud and on services like Dropbox, thus eliminating the need to carry hard paper documents everywhere.

Places Where You Should Not Store Important Documents

On Your Computer
Scanning important documents and storing them in your computer may not be the best alternative, as computers crash and all your valuable information can be lost, unless you use a cloud-based backup service like Carbonite or iCloud. In addition, unless you implement proper and up-to-date security software, computers remain vulnerable to being hacked, giving thieves access to your personal information.

In a Box or File at Home
Simply placing your important papers into a file will not protect them against damage. If you must keep them, consider storing photocopies with another trusted individual at a different location than your home.

No matter where you decide to store your documents, keep a list of where they are and how to access them. Share that list with your designated executor and consider perhaps keeping that information on file with your certified financial planner, CPA, or attorney.

Create Important Documents with Your Estate Attorney
If you have not prepared a will, trust, power of attorney, or other needed estate planning document, please know that it is never too soon or too late to do so. The lawyers at The Law Office of Patricia E. Tichenor are here to help. Contact attorneys Patricia Tichenor or Camellia Safi at their convenient Leesburg, Virginia office for an appointment. Disasters, unexpected accidents, and illness can hit us at any time, so don’t wait. Get your affairs in order now.

The Law Office of Patricia E. Tichenor, P.L.L.C.
Professional Legal Services or Legal Representation
(703) 669-6700

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