This could occur due medical or health issues, problems related to substance abuse or incarceration, or in the case of the death of the parents. If both parents are killed in a motor vehicle accident, the grandparents will often step in to raise the children. Sometime the tragedy is self-induced, as the case of Jovan Belcher.
]]> Belcher killed his girlfriend and the mother of his child, Zoey, last year and then killed himself. A judge is now faced with the unenviable task of sorting out the competing custody issues between the girl's grandmother (Jovan's mother) and a cousin of Kassandra Perkins, Zoey's mother.The girl is only 9-months-old, and has spent most of her time since the death of her parents with Perkins in Texas. Her grandmother has visited several times, and she has stated she would be willing to share custody with Perkins.
An expert witness testified that young children should have a caregiver with whom they can bond, and that travelling the 1,700 miles between Texas and New York would be stressful and could inhibit the proper bonding. Given the other stress the child will endure, the judge will have many difficult decisions to make in this case.
Source: USA Today, "Expert against shared custody for Jovan Belcher's child," Associate Press, June 11, 2013
]]>Although divorce may be necessary in a number of cases, it's still an emotional and complex time. If any children are involved in the split, they will have to adjust to new living arrangements and changes in the days and times they see each parent. During this time of transition, grandparents can play an important role by providing love, support and assurance.
]]> Even though parents alter their relationship with divorce, the split doesn't change the relationship between grandchildren and their grandparents. This steadfast relationship can provide a touchstone of stability while the grandchild is learning to live under his or her parents' custody arrangement.Knowing that a grandparent can be in a unique position of trust and support, a grandchild may come forward with questions or concerns about divorce. The important thing to remember is that emotions shouldn't get in the way of reminding grandchildren that both parents still love them very much. In other words, try not to take "sides" between divorcing parents.
If grandparents understand that having visitation time will be in the best interests of their grandchildren, it may be important to see what options exist to secure that right in court. Because Viriginia's custody and visitaiton laws aren't necessarily geared toward grandparents, it's necessary to address how court-ordered visitation time will truly benefit the kids in question.
Source: Examiner, "Grandparents - Safe haven for children of divorce," Ica Iova, May 31, 2013
]]>We have all probably heard the term sexting, where typically teens send sexually explicit photos to one another. But teens are not the only ones who engage in this behavior. Perhaps because it seems both private and nearly anonymous, people appear to believe that it is unlikely their actions will ever be discovered. Unfortunately, they often become known during a divorce or in a hearing for a child custody issue.
]]> However, many electronic records remain identifiable long after they have been forgotten by their creators. Many of those records can be extracted from hard drives, memory cards and online servers. The executive administrator for the Alamo in Texas is involved in a divorce that began when her husband found an explicit photo in a text that she had sent to another man.He now wants to examine a laptop computer and interview the man. This must be a great source of embarrassment to the woman and could have broader implications given the high-profile nature of where she works.
We urge clients to remember that if a photo or a text message would be embarrassing if read by a judge in a courtroom, and then you may not want to press the send button.
Source: The Houston Chronicle, "Divorce case reveals sexting by Alamo's overseer," June 5, 2013
]]>In most divorces before the real estate crises, the family home was typically the most valuable asset of the marital estate. As part of the property division, one party would either buy the other's share of the home and remain in the house after the divorce, or they would sell the home and divide the proceeds.
]]> This only works if there is equity in the home and after 2008, many homeowners had zero or negative equity because they owed more on their mortgage than the selling price of the home.In this situation, many couples remained married, waiting for the day that they could sell their home for enough to pay off the mortgage. With news that the real estate market is finally beginning to show signs of recovery and with it, the divorce rate has begun to increase.
In addition to being a trying, emotional time, a divorce is a complex financial transaction. It will pay in the end to carefully work with your divorce attorney to develop a settlement that creates the best possible financial future for your life after your divorce is final.
Source: The Fiscal Times, "As Home Values Rise, So Does Divorce," Blaire Briody, May 17, 2013
]]>A prenuptial agreement may seem like the ideal solution, but depending on your spouse, bringing up such a topic may leave one in a very difficult emotional position. If you are really in love with me, your future spouse may ask, just why are you thinking about a future property division in a divorce? This may be uncomfortable at best and permanently damaging at worst.
]]> Nonetheless, if you have substantial assets prior to a marriage, you may still want to protect them in the event you follow the 50 percent of marriages that fail and wind up in divorce court. If you are not comfortable discussing a prenuptial agreement with your spouse-to-be, you have some options.A trust may be the best option, and Virginia even allows you to create a self-settled trust after you are married, but it is probably better to set it up before the marriage, where you are sole beneficiary of the trust.
There are a few other types of trusts and you can discuss with an attorney which one might work for your particular situation, but good advice is to be careful and do not assume there is only one solution.
And always remember, if a transaction looks like it was done close to a divorce simply to freeze a spouse out of assets that would have otherwise been part of the marital estate, it may be disallowed by a court.
Source: Barron’s, "Divorce Trusts," Tatiana Serafin, May 18, 2013
]]>All of the financial questions, combined with the often-overwhelming emotions you may experienced during a divorce, could leave some items overlooked. One item that is often missed in the aftermath of a divorce is Social Security. If your marriage lasted the required time period, you may be eligible to receive spousal and survivor benefits. If your spousal support payment is low and the property division was less than generous, these Social Security benefits can help augment your retirement.
]]>You have to have been married for at least ten years and be older than 62 to be eligible and you may claim the benefit if you have not remarried. You may even be able to receive these benefits if your former spouse is not receiving his if your divorce has been final for two years or more.
Social Security and all retirement income and potential sources should be discussed with your attorney when planning your property settlement.
Source: Reuters.com, “Knowing Social Security rules can help divorced spouses,” Mark Miller, May 9, 2013
]]>This evolution in law can be seen in the increasing trend toward recognizing the important role grandparents play in the lives of their children’s children. More and more often, courts in Virginia and across the country are awarding grandparents child custody and visitation rights with their grandchildren.
]]> Grandparents often assume the role of primary caregivers for a variety of reasons. In fact, a review of 2010 Census data found that 10 percent of American children are living with at least one grandparent. That represents about 7.5 million children living with their grandparents.In certain situations, legal difficulties can arise for grandparents who have assumed the responsibility of raising their grandchildren as well as grandparents who would like to have an increased role in the lives of their grandkids. These difficulties result from the law’s assumption that children are better off being raised by a parent. In many cases, this assumption is simply not true.
Many grandparents have filled an important role on behalf of a parent who can no longer raise his or her own child. Often, grandparents will step in when a parent has died or has become an unfit parent due to mental problems or drug addiction. Increasingly, courts look at what is best for the child when determining child custody and visitation issues as they relate to grandparents.
Source: Asbury Park Press, “No retirement for these seniors: Grandparents as parents,” Amanda Oglesby, April 27, 2013
]]>This makes sense, as courts do not want to have contentious couples returning time and time again to complain that they did not get a particular piece of personal property or some other property was worth more than they received or less than they paid. By making a property settlement difficult to modify, courts save resources and prevent divorce cases from turning into a modern day equivalent of Dickens' Bleak House.
]]> This means that you need to uncover all assets and debts of the marital estate before your settlement is final, because after that, you need to prove actual fraud on the part of your former spouse to modify the property settlement. This rarely happens.However, it may happen in Los Angeles this week, as Frank and Jamie McCourt return to court to determine if Jamie is entitle to a larger share of the marital property. She claims he fraudulently represented his total worth at $300 million, only to close the deal selling the Dodgers two months after his divorce was final for $2.1 billion. This is a case where it is worth the expense of returning to court.
Source: CBS Los Angeles, "Frank, Jamie McCourt Headed Back To Court Over Bigger Divorce Settlement," April 17, 2013
]]>Perhaps it is a result of a more cautious approach to life, having witness the prevalence of divorce among their parents generation and the challenges of the housing market. Much of the buying is being driven by timing, the current real estate market demands the ability to make a quick decision, combined with the presence of attractive interest rates.
]]> It also is viewed as a confirmation of their commitment to each other, as one psychotherapist who works for a large real estate company puts it; the home is the new engagement ring.The majority of the couples today live together before they get married and the couples surveyed for the study all plan on getting married.
Of course, plans do not always work out and no doubt, some of the couples will break up. If they have a mortgage at that point, it is important to note one important fact.
The mortgage is a contract between you, your partner and the financial institution. If you separate, they still expect their payment and if you both signed the mortgage, you are jointly and severally liable for that mortgage payment.
The difference from a divorce and property division is that you will have to decide how to separate without the assistant of a court.
Source: USA Today, "More Millennials get house before getting hitched," Haya Le Nasser, April 17, 2013
]]>Another good reason is to protect your children from a previous marriage. If you have particular assets that you want to ensure you children will receive, a prenuptial agreement can help keep those assets out of your marital estate and subject to equitable distribution in Virginia.
]]> It is important to remember that prenuptial agreement is simply a contract and it is subject to all the usual requirements to be a valid contract. It cannot involve fraud. If a man owns many assets, he may think he can protect some of them by not disclosing them in a prenuptial. This could backfire, invalidate the prenuptial and make all of his assets subject to equitable division.It is also important that both side fully understand the agreement and have competent legal counsel during the negotiations. If the husband is a sophisticated business owner and has his attorney draw up the agreement, the wife needs her own attorney to review the agreement.
Pressure or coercion, by forcing one party to sign the agreement too close to the marriage may invalidate a prenup. The agreement must be fair and, of course, all the formalities of contract law must be observed.
A Virginia family law attorney can advise you these and any other concerns you may have regarding a prenuptial agreement.
Source: Forbes, "Five Reasons Your Prenup Might Be Invalid," Jeff Landers, April 2, 2013
]]>A recent New York Times article discusses the development of some real estate firms that specialize in working with couples involved in a divorce. For real estate, a divorce may present specific challenges. The couple may not want a prospective buyer to know that they are divorcing, fearing that could adversely affect the price of the home.
]]> For other couples, the relationship may have become so corrosive that they cannot work together, even when it is in their collective best interest. These real estate firms understand these challenges and how work within the constraints of the couple's deteriorating relationship.They know how to counter the appearance in home that one member has left, and how best to properly stage the home in that circumstance. They also may be better able to deal with one partner who may attempt to sabotage a showing by leaving dirty clothes strewn around and a mess in a kitchen.
The real estate market has been extremely difficult in recent years and if you have to sell a home in a divorce, you want to maximize your sale, as you will face enough new challenges in your new life after the divorce. A real estate specialist may help with that goal.
Source: New York Times, "After the Breakup, They Help Sell the House," Elizabeth A. Harris, Apr. 1, 2013
]]>Your economic state will now mean you have to perhaps dig out from under debt. The process of making two households out of one is expensive, and even if you and your former spouse had a relatively uncontentious divorce, and minimized your court time and expenses, dealing with a world of reduced income and new maintenance costs, child support payments and the refinancing of some debts is challenging, even to the best money managers.
]]> If it made sense to keep the family home and it was not underwater, the prospect of a new, potentially 30-year mortgage may be somewhat unsettling. You should discuss with your divorce attorney and a financial professional the advisability of such a transaction, as it may not be in your long-term best interest.You certainly need to establish a strict budget and stick with it, as you may find it easy to exceed your income. If you finished your divorce in debt, you need to begin steadily paying it off, as your credit will improve with as your debt is reduced.
If you owe child support or spousal support, you need to ensure you account for those expenses. With your new single status, you should review your insurance coverage and adjust as necessary.
Source: Foxbusiness.com, "Starting Your Financial Life Over After Divorce," Andrea Murad, March 22, 2013
]]>The couple filed for divorce in 2011, after a six-year marriage. Kutcher was reported to have been unfaithful to Moore, including cheating on her on their wedding night. Kutcher filed his response to the divorce in December of 2012, and requested spousal support. The court will have to determine if he meets the requirements, and it may be something of a challenge for his divorce attorneys to successfully argue he is entitled to spousal support.
]]> In California, as in most states, there is a multifactor test that the court looks to when determining if party should receive spousal support. There are 13 elements listed in the Family Code sections, including the length of the marriage, the standard of living, the age and health of the parties, the earning capacity, any occurrence of domestic violence, among others.In this case, given that the Huffington Post article notes that Kutcher is reported to be worth $140 million and Moore is worth $150, it seems unlikely that either party could make a case for spousal support or alimony.
The goal of support is to enable one to live independently, and it appears that both Kutcher and Moore have sufficient resources to achieve that end. If you are divorcing and require spousal support, your divorce attorney can examine your situation and help determine if you may be eligible.
Source: The Huffington Post, "Demi Moore 'Really Hurt': Is Ashton Kutcher Spousal Support Request An Act of Revenge?" Cavan Sleczkowski, Mar. 9, 2013
]]>A do-it-yourself divorce will need a fair amount of cooperation with your spouse. If you have any strong disagreements, there is no easy means of working them out. A single disagreement can result in gridlock. Being close to Washington, DC, we know how well that works out.
]]> Even worse, if you agree to something you do not fully understand, you could be stuck with a truly bad divorce settlement. One area of great concern is division of marital property. While something like a custody arrangement may be modified if a change in circumstances, warrant, a property settlement generally cannot be changed, absent actual fraud by the other party.With the financial side of a divorce, there are many opportunities to make mistakes. Are you certain you know how to assess a family home with an underwater mortgage, or to properly divide the present and future value of a retirement account or pension? Do you know understand you need to divide the martial debts as well as the assets and can you determine the tax consequences of some the decisions?
With many of these issues, a court will not step in a fix your mistake. A divorce attorney can explain each element of the divorce, so that you make informed decisions about the agreement that will govern the next phase of your life.
Source: The Colorado Springs Gazette, "Do-it-yourself divorce could be cause for regret," Linda Leitz, March 10, 2013
]]>Oh, brave new world. Today, a couple may be lucky if the home has any equity at all. If the home is significantly underwater, meaning they owe more on the mortgage than they are likely to receive in selling the property, and if they didn't have sufficient other assets they could pool to pay off the mortgage, it may be difficult to even consider a divorce.
]]> There is also the question of what should be done with the house. A house performs two functions in most families. It provides functional shelter and is, sometimes, an appreciating asset, reducible to cash when sold. It is also the repository of memories, of children's first steps, family Thanksgiving dinners and all the other emotional baggage that follows from a family relationship.But in a divorce, you need to decide if you can afford it, if you want it. How strong is the real estate market in your area? How new is it? How well was it built? How old is your roof? Your air conditioner/furnace? Does it need to be painted? These items could cost you from $5,000 to $20,000 depending on the size of your house. After the divorce, will you have the cash to cover these expenses?
After the collapse of the real estate market, you can no longer count on substantial appreciation in the value of real estate. This means a home cannot be seen as a retirement policy you can cash out. If you want to keep the home, you need to analyze the economics of the situation with a cold, hard eye.
Source: Huffington Post, "Keeping the House After Divorce," Connell B. Kathleen, Feb. 22, 2013
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