Year: 2016

ABLE Act and Financial Planning for Special Needs Children in Virginia

ableThe state of Virginia was the first state to approve legislation related to the ABLE Act (Achieving a Better Life Experience) of 2014. The ABLE Act allows a person with a disability, or his or her family to set up a special savings account to cover expenses related to the disability. This can be a big help in allowing a disabled person or his or her family to save for the future without jeopardizing eligibility for Social Security or other government programs. The savings account is similar to a 529 savings account, allowing savings up to $100,000 for the benefit of a disabled person. These ABLE savings trust accounts will be administered by the Virginia College Savings Plan, with the rules applying to the account:
  • A person is eligible for the ABLE savings trust account if he or she became disabled prior to the age of 26 and is currently either receiving Social Security Disability Insurance or SSI, or files an IRS-approved disability certification.
  • There is no federal income tax on earnings from contributions to the ABLE savings trust account.
  • The ABLE account can help an individual and/or his or her family to:
  • Save for or pay for education;
  • Save for or pay for a home;
  • Save for or pay for a vehicle;
  • Save for or pay for employment training;
  • Save for or pay for assistive technology;
  • Save for or pay for health, prevention and wellness;
  • Save for or pay for personal support services;
  • Save for or pay for financial management or administrative services, or
  • Save for or pay for certain other expenses.
  • ABLE savings trust accounts are exempt from Virginia taxable income;
  • Once the assets in the ABLE account reach $100,000, if the beneficiary is receiving SSI benefits, those benefits will be temporarily suspended until the assets drop below $100,000, with no re-application required.

Eligibility for Medicaid

The primary benefit of ABLE is to prevent a disabled person from losing Medicaid eligibility due to an excess of assets, however there is one caveat. Should the qualifying person die, or is no longer disabled, remaining assets in the ABLE account will be used to pay back the state Medicaid fund. The amount to be paid back will be based on the amount Medicaid paid the qualifying person after the ABLE account was first set up. This is considered a serious drawback for most families who want to be able to fund a trust for the disabled family member while retaining the right to allow other family members to eventually benefit from the remaining assets in the ABLE account. The stipulation that Medicaid will be paid back in the event the disabled person dies is being fought by the National Academy of Elder Law Attorneys. There is an alternative to ABLE, known as a Third Party Special Needs Trust. Under a Special Needs Trust, assets are not recoverable by Medicaid at the time of the beneficiary’s death, providing the trust was funded by assets of the parent or other third party, allowing for a secondary beneficiary. Because of this an ABLE account should not be a substitute for a Special Needs Trust, and should be only a limited substitute for a First Party Special Needs Trust. Although Virginia was the first state to enact ABLE, it has since been enacted in West Virginia and North Dakota and is pending in Kansas. Legislation for ABLE is under consideration in 29 additional states. If you are considering setting up an ABLE account, it is important to consult an experienced Virginia estate planning attorney who will take into consideration what you want to accomplish for the future of a special needs person and then translate those wishes into the best plan for your situation. Contact the attorneys at Melone Law today to learn more!

What Happens if a Person Dies Without a Will in Virginia?

my-willShockingly, some 55 percent of American adults have neither a will nor any other type of estate plan in place. This number has remained fairly steady for the past fifteen years and does not take into account the number of adults who have put medical directives in place—a number which has actually increased. Although medical directives, which explain what type of medical care you want to receive should you become incapacitated, are a good thing to have, they do not help your family with your financial affairs should you die suddenly. Among minorities, the number of American adults who do not have a will is even higher. Nearly three-quarters of Hispanic adults and about 68 percent of black adults do not have a will. In general, those adults who do have wills are over the age of 60.

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How Residency Requirements Affect Divorce in Virginia

divorce-textWhile you always have the right to represent yourself in a divorce, you may be unknowingly giving up important rights.  In filing for a divorce, the parties need to meet certain requirements for the case to proceed; mistakes can result in a dismissal, meaning wasted time and money. One of the key areas that many people fail to understand is the residency requirements for filing a divorce in Virginia.  A Virginia family law attorney will make sure that your rights are protected and all filings and deadlines are met.

What are the residency requirements?

To start the divorce process in Virginia, you must file a complaint in the circuit court where either you or your spouse lives.  Determining where to file your divorce is a question of jurisdiction. A court must have jurisdiction over your case before it can grant your divorce, and each state has specific requirements. In order to file for divorce in Virginia, at least one of the parties must meet the residency requirements of Virginia Code Section 20-97. That section states in part that “no suit for annulling a marriage or for divorce shall be maintainable, unless one of the parties is and has been an actual bona fide resident and domiciliary of this Commonwealth for at least six months preceding the commencement of the suit.” So, the residency requirement is met if either spouse has had a permanent home in Virginia, even if that party was not physically present in the Commonwealth during every day of the time period.  The law is absolutely clear on this point.  Either you or your spouse must have been a resident for the required 6 month period of time during the separation and at the time that your file for divorce. The domicile requirement is a separate condition. Being “domiciled” means that you intend to live there permanently, or at least indefinitely. A person may have more than one residence, but can only have one domicile at any particular time. For a divorce in the state of Virginia, the jurisdiction is held by the county or city where the two parties last lived together as husband and wife. But, the petitioner may also choose to file the divorce in the county or city in which he/she resides, or in the county or city where the respondent currently resides, as long as that residence is within the state of Virginia and one of the parties has met the residency requirement.

What if you moved within the state of Virginia?

A person does not have to remain at the same address to file for divorce in Virginia. As long as the new address is within the state, the residency requirement is met. In the case where one spouse stayed in the home and the filing petitioner moved out, the petitioner would file in the jurisdiction of the shared home. The filing spouse, or petitioner, will not be required to list every address at which he/she lived during the period of separation, but they should be prepared to prove where they lived during the separation at the time of the final hearing.

How do you prove residency?

In many cases, the residency of the filing spouse will be accepted as it is listed in the sworn complaint. The testimony of a corroborating witness will verify the petitioner’s residency.  But, it’s a good idea to bring copies of leases, utility bills, and a valid Virginia driver’s license with your current address, especially if you have moved several times, to support the residency requirement.  Some Virginia counties require a sheriff’s proof of residency.  In all Northern Virginia jurisdictions, you will be required to show a valid Virginia driver’s license with your current address.  A case can be dismissed if the petitioner cannot provide proper proof of residency, and some rulings have even been overturned on this basis.

How do you establish residency?

Establishing residency really isn’t difficult.  Any of the following can establish residency: 1) Getting a job in the Commonwealth, 2) Registering to vote, 3) Getting a Virginia driver’s license, 4) Opening a bank account, 5) Renting/buying a home and setting up utilities. Your spouse does not have to be a resident of Virginia for the proceeding to go forward. If either you or your spouse moves to another state after the divorce has been filed, you may still have the case heard in Virginia.

Service Members

Virginia law provides a special jurisdiction rule for military divorce cases. A member of the Armed Forces who has been stationed or has resided in Virginia for the requisite time period immediately preceding the filing of the divorce action is presumed to be both domiciled in and a resident of the Commonwealth.

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To further complicate matters of residency and jurisdiction, a court may have jurisdiction to grant your divorce, but may not have jurisdiction to decide issues of child custody or property division.  Or, they may decide division of property owned within the Commonwealth, but not have jurisdiction to grant the divorce because the parties don’t meet the residency requirement. If you have questions or concerns about residency or jurisdiction, consult an experienced family law attorney. The attorneys at Melone Law have the knowledge and expertise to advise you in this matter.  Make sure that all of your rights are protected during a divorce. Schedule a consultation today.

What you should know about child visitation laws in Virginia

child-visitation-lawsWhen a marriage fails, children are often stuck in the middle of the divorce. Custody battles, access, and visitation often cause untold complications, especially for children who may already be insecure and fragile at this time. It is important to understand each aspect of child custody and child visitation laws in Virginia. In this blog we will discuss custody, visitation, the best interests of the child and when it’s time to hire an attorney.

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Virginia Marital Separation and Property Settlement Agreement

marital-separationWhile many states provide legal separations which are granted by the courts, Virginia does not. Instead, if a couple would like to separate, they can do so by simply living separate and apart. However, it is recommended that a separation agreement is created which is also commonly known as a property settlement agreement.

What is a Separation Agreement?

When a married couple decides that they want to live separate and apart, a Separation Agreement is created in order to divide their responsibilities and assets in a mutually acceptable way. This document may be used in three ways: if the couple wants to separate but is not ready for divorce, if they are ready to divorce and want to divide assets, or if they want to separate but remain married. The terms can include but are not limited to earnings, debts, properties, and parental responsibilities, child support, visitation, and spousal support.  The Separation Agreement can be submitted for consideration during a final divorce judgment, or prior to divorce proceedings. Due to the fact that leaving a spouse can be deemed spousal desertion, a Separation Agreement can be used to ensure that both parties are divorced on no-fault grounds. Once this agreement is filed, either party can file for an uncontested divorce in which both parties are deemed not at fault after a period of 6-months if no minor children are involved and after 12 months if minors are involved.

Are Separation Agreements Binding?

Separation Agreements, like any other legal document, can be complex and confusing but are binding. Due to this fact, and the importance of the document for both parties involved, it is highly recommended that both parties review the document with their own attorney before signing it. This will ensure that each party’s interests are protected as it is very difficult to have the agreement changed or amended by the court once both parties have signed it. A signed separation agreement is a valid contract and the terms will be enforced. However, there are a few issues that may be subject to change in court such as custody, child support and visitation or access, depending on the best interests of the child. An experienced attorney will be able to review the agreement and help you take the best approach.

Do You Need an Attorney?

As you can see, a Separation Agreement is an important document for married couples who are going through a separation and plan to divorce in Virginia. While you can fill out the agreement on your own, the ramifications can be long-lasting and will impact areas of your life for years. Experienced family law attorneys have the insight needed to include protective provisions which will close any loopholes which may leave you vulnerable both during the separation and after. To ensure that your interests are protected, it is advised that you consult an attorney who can help you understand your specific situation, give legal advice, protect your rights, and properly fill out the agreement. As a result, you will not have any unfortunate surprises throughout your legal proceedings. Going through a separation is never easy. However, it can be a lot more difficult when you don’t take steps to protect your own interests legally. Our attorneys can help you understand the separation and divorce laws of Virginia, and help you take the steps you need to take to minimize turbulence throughout the process. If you are in need of a Separation Agreement, the attorneys at Melone Law can help ensure your interests are protected. Contact us today to schedule a case evaluation.

Talking to Your Children About Divorce

In any divorce or separation involving children, it’s important that the children understand what is happening and parents address their concerns at each stage. No matter their age or maturity level, every child will have some anxiety about the process and changes impacting their daily life. The following are some tips on how to alleviate some of your children’s stress when discussing divorce or separation: Father and Kids Address it Together Children need to hear from both parents and the risk of blaming or insulting the other parent will be extremely reduced if everyone is in the room together. Children need support from both parents. Unless there is a history of family violence or abuse, parties should try to sit down together to talk about the situation. If the parties are struggling to keep a neutral tone, use of a family therapist or other neutral third party may be advisable. Stay Broad Your children don’t need to know which spouse is paying how much in child support or what the specifics are of the marital home refinance. Keep answers to your children’s questions broad and focus on matters that will impact them. The most important items to address will be:
  • Where each parent will be living,
  • That both parents still love and want to share time with the children,
  • When the children’s schedules will change and how,
  • When and how frequently the children will get to see each parent.
If one spouse is leaving and won’t be able to have overnight visitation, the children should be reassured that the lack of overnight visitation is only temporary. Efforts should be made to have both parents continue to attend and participate in the children’s educational and extracurricular activities. Be Respectful It can be tempting to say hurtful things about the other parent, especially if a new partner is involved, but only the children will suffer from negative comments about the other parent. Try to show respect for the other parent in all communications with the children. To avoid conflict when interacting in front of the children. Remember:
  • Do not criticize or blame,
  • Avoid name-calling and insults,
  • Watch your body language,
  • Try to keep your emotions under control.
Fighting or having an emotional breakdown in front of the children will only add to their anxiety about the divorce and may negatively impact your case down the line. Children may internalize your emotional reactions and feel they have to take care of you, rather than the other way around. Showing your emotion or making negative comments about the other parent will make children feel they have to choose between parents. The court’s key focus in addressing custody is the best interests of the child. The court will consider the child’s opinion, but will also consider the conduct of each party throughout the process. Making negative comments or acting inappropriately in front of children will negatively impact your case at trial. Schedule Time Together It’s not enough to reassure your children that they will see both parents; you have to follow up and make sure both parents have consistent, positive, contact with the children. Setting a temporary visitation schedule and modifying it as necessary can save both parties a lot of time and hassle, and save the children from unnecessary anxiety. Our team at Melone Law, P.C., located in Reston, Virginia, has significant experience in the area of divorce and family law. We will fight to protect your best interests and help you reach an equitable resolution. To discuss your specific situation, contact us today for a case evaluation.

5 Things You Need to Know About Separation and Divorce in Virginia

divorce-decreeUnderstanding the ins and outs of your divorce case can be nearly as troubling and stressful as making the decision to file for divorce. Equipping yourself with a solid grasp of the nature of separation and divorce in Virginia can help you reach the most favorable outcome. To help you through the process, we’ve compiled a list of five important aspects of divorce law in Virginia.
  1. The Legal Definition of Separation in Virginia
Separation in Virginia can be best described as a physical separation. A married couple makes and follows arrangements to live separately. However, this definition does not imply that the couple has signed a formal Separation Agreement. Separation in Virginia is not the same as a legal or formal separation found in other states.
  1. The Importance of Separation Agreements
You’ll find Separation Agreements are called by many different names, but all can be defined as legal contracts. These contracts are agreed upon and signed by both of the parties involved. They cover important matters such as property, child custody, support, and finances to help spouses resolve disputes and narrow the issues regarding the divorce. Above all, a Separation Agreement is a legal document and can be enforced by the court. These documents may also be used in contempt-of-court proceedings once they are incorporated into a final decree of divorce. The matters decided upon in Separation Agreements are final except those regarding child custody and support as these needs may change.
  1. Separation as a Grounds for No-Fault Divorce
Separation serves as a basis for a no-fault divorce in Virginia. If a couple has children, the separation must be for at least one year in duration with no reconciliation on the part of the couple during that one year period. It must also be intentional. If the couple have no children under the age of 18, the separation may last for a shorter period of time, 6 months, and must include a Separation Agreement.
  1. Response Requirements
Response requirements depend on the residency of the receiving party. If you file for divorce and your spouse is a Virginia resident, he or she will have 21 days to respond. If your spouse lives in another state, the response time is extended to 60 days. In the case that your spouse lives outside the United States, he or she has 90 days to respond to the complaint. What happens if your spouse does not respond? If the service of process is successful, the court can still continue with the divorce. A hearing will be scheduled requiring the appearance of you and any corroborative witnesses. During this time, you and your spouse will have the opportunity to offer evidence. Once the hearing is over, the court will make a decision regarding the grounds of divorce and related settlements.
  1. How Residency Affects Divorce Processing
Where should you file for divorce? The complaint must be made in the circuit court where you or your spouse have established residency. It is important to meet the residency requirements before you file. In Virginia, you or your spouse must be able to prove residency in the state for at least 6 months before filing for divorce. If you are not able to prove that you or your spouse meet the residency requirements, your case may be dismissed. You may file for divorce in the county or city where you and your spouse last held residency or in the Virginian county or city where either of you resides. Our legal team at Melone Law, P.C. has significant experience in the area of family law, divorce, separation agreements, and residency requirements. To discuss your specific situation, contact us today for a case evaluation.

Divorced Spouse Gets to Keep Ill-Gotten OPM Benefits

Keep the Money, and Run! In a recent case, the Virginia Supreme Court allowed a divorced wife to keep almost $63,000 worth of survivor benefits wrongfully paid to her by OPM. Read more. Read the opinion here: Emond v. Office of Personnel Management (CAFC No. 2016-1227 (nonprecedential), 4/8/16

Child Support and Imputation of Income

What happens to child support when one parent switches careers or quits their job? Guideline Child Support Every parent has a duty to support their children, whether or not they are employed. When parents divorce or separate, one or both may petition the court for child support. The court will order both parents to provide income information, including paystubs and tax returns, in order to calculate the presumptive amount of child support. The guidelines can be found in 20-108.2 of the Code of Virginia. The guidelines will apply unless they are somehow unfair or inappropriate. If a parent chooses a lower-paying job or quits working altogether, he or she should not be allowed to avoid their obligation to pay child support. One solution is to impute income to a parent that chooses not to work or switches to a lower-paying profession. Imputation of Income Virginia courts have consistently held that a parent cannot avoid or reduce their child support obligation merely by switching careers or quitting their job. Under 20-108.1(B)(3) income may be imputed to a parent who is voluntarily unemployed or underemployed. The court will look at the parent’s earning capacity, training, and prior earning history in determining whether to impute income. A parent cannot voluntarily pursue low-paying employment to the detriment of support obligations to a child. Niemiec vs. Commonwealth, 27 Va. App. 446. In order to show voluntary conduct, the court will consider the parent’s reasons for leaving a position, their earning capacity, education level, and work history. The court held in Antonelli vs. Antonelli, 242 Va. 152 (1991) that the risk of success at a father’s new position “was upon the father, and not upon the children.” In that case the father left a salaried position as a stockbroker for a commissioned position in the same field. When his income was drastically reduced, he requested modification of his support obligation. The court held that his conduct in choosing a different job was made in good faith for legitimate business reasons, however, it was still voluntary and his child support would not be reduced. Other Grounds for Adjustment The court can also adjust the presumptive amount of child support if any of the following circumstances apply: 1) a parent provides support to other family members, 2) costs related to visitation with the children, including travel expenses, 3) debts incurred for the child’s benefit, 4) special needs of the child, 5) standard of living established during the marriage, 6) earning ability and needs of each parent, 7) tax consequences, 8) any other factors that impact the fairness of the child support award, Anytime there is a material change in circumstnaces, the court may revisit and adjust child support accordingly. If you believe you have special circumstances affecting your child support case, you should contact an attorney to discuss your options.

How Divorce is Different for the Special Needs Child

special-needs-childToday, 25% of households in the United States have a member with special needs. An estimated eight percent of children in the United States under the age of 15 have some type of disability or special need. Caring for a child with special needs often requires thoughtful planning, specialized care, and often, extraordinary expenses. In fact, Autism Speaks estimates the cost of caring for a person on the autism spectrum through the course of his or her lifetime to be $2.3 million. Determining what is best for a child during a divorce can be a complex issue. Parents of children with special needs will need to be especially mindful of transitions, routines, healthcare, schooling, and long-term expenses. The child’s best interests should always come first and take into account the child’s relationship with his or her parents and the ability of the parents to meet the child’s needs. To better understand how divorce is different for the special needs child, we’ll review some common considerations and discuss how to best navigate this transitional period.

Child Support May Need to Be Adjusted

Child support guidelines do not factor in the extensive costs of a raising a child with special needs or disabilities. Children with special needs often need medical treatments, counseling, specialized therapies, medications, unique diets, and special schooling and tuition as part of their care. Parents may also need to purchase specialty equipment, clothing, and food for their child. Child support guidelines will not even remotely cover the actual needs of a special needs child. If a special needs child has predictable and recurring expenses, most courts will require that these items be added to the child support award. Courts will need to consider the cost of the child’s overall care, including healthcare costs and coverage, and may adjust the amount and duration of child support as needed.

Schedules and Transitions Must Be Carefully Planned

The traditional approach to schedules, access, and visitation arrangements may not be appropriate for a child with special needs. While alternating weekends and scheduling short visits may be the norm, such transitions are not always in the best interests of special needs children. These arrangements require frequent adjustments and transitions, disrupting routines which provide a special needs child with security. In the case of divorce for the special needs child, it is often best to avoid frequent schedule changes. Instead, parents may schedule large blocks of time such as school breaks, holidays, and summer vacations. Doing so gives the parents and the child time to prepare for the transition and enjoy more concentrated one-on-one time together. Special consideration will need to be given to the use of child care providers. A sudden “parent’s night out” and an unfamiliar babysitter may cause unneeded stress. Child care providers should be approved by both parents and efforts must also be made to prevent all avoidable disruptions.

Long-Term Care May Be a Reality

When considering child support and the division of marital assets, both parents should consider what type of expenses the special needs child will have in the future. Many children with special needs may never move beyond their parent’s “sphere of influence.” While child support guidelines take into account raising a child into adulthood, parents of children with special needs often need to consider long-term care and child support that will continue indefinitely. This requires extensive planning. These permanent expenses may include a live-in caretaker, residential facility, or adult day care services. It is also important that parents determine and plan for who will care for the child after their deaths. Parents may need to set up trusts or apply for government benefits.

Priorities for Child Care Should Be Set

It isn’t uncommon for parents to have different priorities regarding child care. These differences are often exacerbated during a divorce. Parents may disagree over which expenses are necessary and the priority of those necessary expenses. However, for the best interests of the special needs child, priorities must not only be determined, but agreed upon and strictly followed. Doing so requires effective communication. A legal professional may serve as a mediator for parents who cannot come to a mutual agreement regarding these matters independently. Our legal team at Melone Law, P.C. has significant experience in the area of family law and divorce. We will work to ensure that your child’s best interests are safeguarded and help you reach an equitable resolution. To discuss your specific situation, contact us today for a case evaluation.
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