Year: 2018

Child Custody in Virginia… Can I Relocate Out of State?

Let’s start with a real-life scenario: John and Susan share physical custody of their daughter, Mary.  They live about 10 minutes apart in the same Virginia town, and though Mary’s primary residence is with her mother, Susan, John spends several days a week with his daughter.  He goes to her school functions, never misses a soccer game or piano recital, and takes her to church every Sunday.  Susan would like to relocate to Dallas.  She has gotten a new job there with a larger salary, and she will be close to her parents, Mary’s grandparents, and other extended family.  The schools are great and she and Mary will have a higher standard of living there, which will give Mary many more opportunities. John does not want Susan and Mary to move.  He is involved in her life and does not want to lose contact with his daughter for extended periods of time.  John feels he is being cut out of Mary’s life and that the move will make it nearly impossible for visitation with Mary to continue. Custody and visitation Parents who are separating often wonder whether they can move out of state, and whether they can move their child with them. Whether it’s for a better job prospect, a new relationship, or to have support of extended family, parents need to take extra precautions before deciding whether to make a move following separation or divorce. In Virginia, if a parent wishes to relocate, he/she must give at least 30-days written notice to the other parent. If your co-parent moves away without giving written notice, they will likely be in contempt of court. A custody order is not set in stone and may be modified by the court at any time after the divorce.  If you share custody of your child with your co-parent, and the two of you can’t come to a decision about relocation, the court will step in and decide with which parent the child remains. In relocation cases, the court is interested in only one thing: whether the best interests of the child will be served by modifying the existing custody order and allowing the relocation.  The court does not take into consideration whether the relocation is in the parent’s best interest.  The court focuses on these three factors:
  1. The reason for relocation, including employment opportunities, standard of living, and contact with extended family members, and how it will enrich the child’s life.
  2. The effect a relocation will have on the relationship of the non-custodial parent and the child.
  3. How the relocation will affect the non-custodial parent’s visitation with the child.
It is important to note that under Virginia law, the parent seeking to relocate has the burden of proving that relocating is in the child’s best interest.  A non-custodial parent who has a positive relationship, is involved in his/her child’s life, and maintains an active, on-going interest has a much better chance of preventing a relocation than a parent who has little or no involvement.  It is also important to understand that even if a parent has sole legal custody, that does not give him/her the unilateral right to relocate out of the jurisdiction with their child.  The court does not look favorably if it feels that the parent requesting relocation is being manipulative and the move is designed to cut off family members who currently have a legal right to see the child. Modifying visitation If you look at the scenario at the beginning of this article, it is obvious that if the relocation is granted, John will no longer be able to be as involved in his daughter’s life as he currently is.  With over 1000 miles between them, he won’t be able to be an active participant in her daily life, go to parent-teacher conferences, attend her games and recitals, or take her to church.  Current visitation won’t be able to continue in this new situation. The court will need to step in and modify the visitation order.  The court usually tries to make up for the “lost time” the non-custodial parent now misses with the child.  For example, the court may change the order from three nights a week and 2 weeks of summer vacation, to 4 three-day federal holiday weekends a year, plus six weeks of summer vacation, and the winter or spring break.  Visitation would be less frequent, but longer in duration. There are never any guarantees as to what the court will decide.  Whether you are the custodial parent seeking to relocate or the non-custodial parent trying to prevent a relocation, the first step towards protecting your rights is to hire an experienced Virginia family law attorney with expertise in custody and relocation matters.  Your attorney will work hard to make sure you are treated fairly by the court.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about custody, visitation, relocation, and family law, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

How to avoid or reduce probate in Virginia

Is it Possible to Avoid Probate in Virginia? The short answer is no.  It is almost impossible to completely avoid probate in Virginia, but you can reduce the number of assets that need to go through probate.  Many people have a negative view when it comes to probate.  It may stem from a personal experience or from horror stories you’ve heard from friends. In Virginia, an estate will need to be probated when a person dies with property valued at more than $50,000.  So, to avoid probate, you must die with either a very small estate, or you must take steps to make sure that your assets transfer automatically to beneficiaries. What is probate? Probate is the process that the Commonwealth of Virginia uses to oversee the distribution of someone’s estate after death.  Its purpose is to prove that the last will and testament of the deceased is valid, the decedent’s debts and bills are paid, final tax returns have been submitted and paid, and the decedent’s property and assets are distributed to the beneficiaries, per his/her wishes. Depending on the size and complexity of the estate, probate can take as little as a few months, or as long as several years. What can I do now to avoid probate?
  1. Consult a Virginia estate attorney: The best way to avoid probate is to work with an experienced estate attorney.  Your attorney will itemize and analyze your assets, listen to your plans, ask the right questions, and help you create the documents that will fulfill your wishes now and after you have died.
  2. Create a revocable living trust: A revocable living trust is created during your lifetime.  You transfer your assets, such as your home, vacation home, cars, bank accounts, investment accounts, etc. into the trust, and manage and use them while you are alive.  Upon your death, a named successor trustee distributes your assets to your beneficiaries per your wishes, usually within weeks.  Because legally, the trust owns the assets, your estate does not have to go through probate.  A revocable living trust is a flexible document that can be changed or even revoked at any time.
  3. Add beneficiaries to appropriate accounts: Many checking, savings, money market, retirement accounts, pensions, life insurance, and other accounts allow you to add a beneficiary directly to the account.  After your death, the money in these accounts passes directly to your named beneficiaries without having to go through probate and can be used immediately.
  4. Transfer or pay on death accounts: This is similar to adding a beneficiary on your account(s).  You can designate a person or persons to whom the account is paid upon your death.
  5. Joint tenancy with right of survivorship: To ensure that real estate does not have to go through probate, you can change your sole ownership of property to a joint tenancy with a right of survivorship and make your intended beneficiary the other co-owner of the real estate. This will enable the other co-owner to take control of the property immediately, upon your death, since the title will remain with them.
  6. Transferring property now, not after death:You may begin gifting property like jewelry, collectables, and art, as well as money, prior to your death. Since you never know how your financial situation may change in the future, it may be best not to gift significant amounts of money now.  Virginia tax laws allow you to gift up to $14,000 in assets annually to each beneficiary without gift tax collection.
  7. No Contest Clause: This does not avoid probate, but it can prevent your will from being drawn into a long and ugly probate process.  If a beneficiary contests your will, he/she will be risking their inheritance.  The no-contest clause states that if the challenge is unsuccessful, they will forfeit their inheritance.
Probate is a costly, stressful, and time-consuming process.  It can become burdensome to your loved ones, especially since they may still be grieving.  And, it can be difficult for a person with a full-time job to devote the time and energy needed to deal with lawyers and the court.  The fees accrued for legal representation and administrating the estate can grow quickly and must be paid in full before any distribution of the estate to your beneficiaries.  That may mean that assets won’t go to beneficiaries, but will need to be liquidated to cover fees.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about probate and estate planning, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

We’re Separating… Do I Need a Parenting Plan in Virginia?

A parenting plan is a written agreement between parents who are divorcing, or maybe have never been married but no longer wish to live together, that outlines the responsibilities and expectations for custody, visitation, financial obligations, and other parenting issues that may be specific to your situation. Though often included as part of a separation agreement, a parenting plan is not a requirement for separation or divorce in Virginia.  An experienced Virginia family law attorney can help you put a parenting plan together that is fair, covers the specific needs of both parents and the minor children, resolves problems, and avoids bitter and expensive custody disputes.  A parenting plan also allows you to avoid the scenario in which a judge makes decisions for you.  If you can work through these issues now, you can avoid time-consuming and costly litigation in the future.  It may also help you maintain a better relationship with your children’s other parent.  All parenting plans should take into consideration:
  • The best interests of the children
  • The importance of consistency in your children’s lives in both parents’ homes, and maintaining scheduled activities, like sports, recitals, school activities, and time with friends.
  • Keeping the lives of your children as normal as possible during a time of fear and change, going forward.
  • The continued healthy development of the children.

What is included in a parenting plan?

At the very least a parenting should outline the following in as much detail as possible:
  1. Legal custody – Who has the responsibility to make decisions for your children? This includes major decisions about health care, religion, vaccinations, and education, but also can include other issues like recreation or ear piercing.  Legal custody can be joint (both parents have the authority to make decisions) or sole (only one parent has the authority to make decisions.)  If a parent has sole custody, the plan should also specify what legal issues the other parent will be advised or consulted about.
  2. Physical custody – Where is the child’s primary residence? Again, physical custody can be sole or joint.
  3. Visitation – When and how much time will the child spend with the noncustodial parent? This includes the division of holidays, vacation times, summers, and special events. A parenting plan should include a schedule with calendar dates and times and specific drop off/pick up arrangements.  It may also include transportation costs if parents do not live close to each other.
  4. Changes/delays – How will a parent be notified if there is a change to the visitation schedule? For instance, if your child has a sleep-over at a friend’s house during visitation.
  5. Financial obligations – Who is responsible for which expenses of raising a child? This includes child support, childcare costs, medical care and health insurance, school tuition, college, music lessons, extra-curricular activity expenses, etc.
  6. Communication – How will the parents communicate with each other and with their children? How will they resolve conflicts and disputes?  This includes detailing how and when new significant others should be introduced into the lives of your children.
  7. Modifications to the plan – What happens to the parenting plan in case of remarriage, income increases or decreases, or relocation? The parties should include procedures for modifying or reevaluating the plan if/when circumstances change.  It is important that the agreement be both durable and flexible so that it can accommodate change when needed.
A Virginia parenting plan should allow both parents to maintain an active role in the lives of their children. It should also provide both parents with a clear understanding of their rights and obligations after the divorce.  It is specific to your unique situation and tailored to meet the needs of both parents and children.  If parents can’t reach an agreement on a parenting plan, the court will reach one for them.  In doing so, the judge, by law, must consider only the needs and best interests of the children.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about parenting plans, separation agreements, and family law, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

The Importance of Estate Planning for the Single Parent

Being a single parent has added responsibilities, including making sure that your minor children are taken care of in the event you no longer are there.  What would happen to your children if you died, or became incapacitated and could no longer care for them?  Where would they live?  Who would take care of them?  Who would pay for their day-to-day care, housing, and education?  If you are not married to the child’s other parent, or are married but separated and in the process of divorce, these questions become much more complicated. You may legally be the sole decision maker when it comes to the care of your children and you may have a plan in mind.  You may have spoken to family members or friends about what you would want to happen if you were to die unexpectedly.  But, unless these plans are stated in properly executed estate planning documents, your choices may not be followed.  A knowledgeable and experienced Virginia estate planning attorney will educate and advise you, and create the documents needed to make sure your wishes become a reality.  Remember, your goal is to make sure your children are well cared for, even if you’re not the one doing it.

An estate plan is much more than a will!

A properly drafted estate plan will reduce your stress now, and also reduce the stress and eliminate guesses and conflict of those left behind during a difficult time.  What estate planning documents do you need and how will they help you as a single parent?

Will

First and most importantly, your will is used to name a guardian for your minor children.  In the event of your death, your children’s other parent will automatically become their guardian.  But, even if that parent is fit, you should always designate a guardian in case the other parent can’t or chooses not to act.  You may also designate a different person, other than your children’s other parent or the named guardian, to manage your children’s inheritance.  Without a will, the court will appoint a guardian of their choosing and may grant custody of your children to someone you wouldn’t want raising them. A will is also used to designate the executor for your estate; the person who will honor your wishes and decisions and distribute the estate according to your instructions.  If you don’t have a will, your estate will be distributed per the intestacy laws of Virginia.

Revocable Living Trust

A living trust has many benefits, especially for a single parent of children who are too young to manage assets on their own. A trust allows you to be in charge of your assets while you are alive, but when you die or become incapacitated, the person you name as successor trustee will follow your wishes, administer your assets as necessary, and make distributions to beneficiaries. This is particularly important even if your children are technically adults…18 years or older.  Young adults may not be ready to handle an inheritance and use the money as you would want.  A well written trust will name a trustee who can distribute the inheritance wisely and per your intentions, with the goals of paying for living expenses, college, or possibly a down payment on a home.  A properly drafted trust will also avoid probate, which can be both expensive and time-consuming.

Advance Health Care Directive

A health care directive, often called an advance medical directive or “living will” allows you to name someone you trust to make decisions about your health care when you are not capable of doing so yourself.  This allows a single parent to specify, in advance, what his or her health care wishes are and how they should be carried out.  This should give you peace of mind, knowing that your medical decisions even made in advance are made according to your wishes.  It also makes sure that your family members do not undergo the additional strain of trying to make key medical decisions on your behalf, during an already stressful time.

Power of Attorney

As a single parent, you are probably the only name and signer on your bank accounts, mortgage, credit cards, and other bills.  A durable power of attorney lets you name a trusted individual to manage your financial affairs and legal decisions if you are not able to due to incapacitation.  It’s critical that someone is able to access your accounts, if necessary, to pay your bills and mortgage, keep the lights on, and make sure your children are being properly cared for.

Beneficiary Designations

You may have life insurance policies and retirement accounts.  These policies are not listed in your will or trust.  The beneficiary designations on these accounts will control who they are distributed to.  It is important to understand that minor children are not legally allowed to control assets, so it is important that you review your policies and make sure your minor children are not named as beneficiaries.  If they are, a guardian will have to be appointed by the court to manage these assets until the minor child turns 18.  A Virginia estate planning attorney can suggest strategies that will allow your children to benefit from your life insurance and retirement accounts without court intervention. As a parent, your first and most important goal is to protect your children.  This is true even if you are not able to do so yourself because of incapacitation or death.  As one of your most important responsibilities, a comprehensive estate plan allows you to make decisions now to ensure that your children are cared for in the way you wish if the unthinkable happens.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about estate planning, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Working Through the Unique Issues of a Grey Divorce

Even though the U.S. divorce rate has pretty much leveled off and even decreased over the past two to three decades, the divorce rate for couples over 50 years of age has increased dramatically and now accounts for over 25% of all divorces.  There are many factors that may help explain the rise in “grey divorce.”  Some likely reasons include: Growing apart – After a long marriage, couples feel they don’t have much in common anymore and have different interests and goals.  People expect more of marriage today.  Sticking it out in an unfulfilling marriage, just for the sake of being married, has become passe‘. Improved health and longer life expectancy – People are living much longer than they did even 50 years ago, and they’re healthier and active.  A divorce at 55 or 60 isn’t the end.  It’s often the beginning of a new and interesting chapter of one’s life and seniors are ready and willing to take action to pursue a more fulfilling life. According to data compiled by the Social Security Administration as of 2016:
  • A man reaching age 65 today can expect to live, on average, until age 84.3.
  • A woman turning age 65 today can expect to live, on average, until age 86.6.
  • About one out of every four 65-year-olds today will live past age 90.
  • One out of 10 will live past age 95.
Opportunities to Date – Divorced seniors are entering the dating scene at unprecedented numbers, looking for new opportunities to socialize and meet new people who share their interests.  Online dating is surging in popularity for those over 50. Women are financially independent – Women over the last 20-30 years have been in the workforce and led more independent lives.  They’ve had or may still have a career, other than motherhood, and don’t have to rely on their husbands for money.  Husbands are no longer the sole breadwinner in the family.  Women have much more financial stability as they age.  They have good salaries, retirement accounts, pensions, 401k accounts and are much more able financially to leave an unsatisfying marriage.

Critical issues to consider in the Grey Divorce

When younger couples divorce, the main issues are usually child custody and support, visitation, spousal support (alimony), and division of property.  No matter why you’re seeking a divorce later in life, the fact is the longer a couple is married, the more complex the issues surrounding their divorce will be.  The division of marital assets can be significantly more complex and complicated during divorce proceedings.  The Commonwealth of Virginia is an equitable distribution state.  That does not mean property is split 50/50.  Equitable means fair, not even.  It is important that you speak with an experienced Virginia family law attorney to ensure that your divorce gives you the new life you are planning for.  Here are the issues and financial challenges a knowledgeable Virginia divorce attorney can work through with you:
  1. Income and spousal support: How will each spouse maintain an income stream that meets their circumstances?  Will it require rejoining the workforce, delaying retirement, paying or receiving spousal support, or splitting a fixed income, like a pension, if you’re retired?
  2. Division of property: If you’ve been married 20 years or more, you probably have significant assets, both marital and separate property that will need to be divided.  It may be difficult to define which is separate property after a long marriage.  There are many considerations that are unique to a grey divorce when dividing assets, such as the length of the marriage, if one or both parties are retired or close to retirement, when and how assets were obtained, pensions and retirement accounts, inheritances, and much more.
  3. Social Security: In some circumstances, a spouse is entitled to benefits based on his/her spouse’s social security.  This depends on the duration of the marriage and each spouse’s income. Getting remarried will stop any spousal social security benefits.
  4. Life insurance: Anyone paying spousal support is required to have a life insurance policy in the amount and for the term that is equal to the amount and duration of the spousal support decreed in the divorce.  This can impact seniors, as even term insurance policies can be extremely and sometimes, prohibitively expensive.
  5. Long-term considerations: There are many issues surrounding getting older, including competency, long-term care, end of life care, and preparations for burial or cremation. This should be considered in a grey divorce. It is important to update your estate plan both during and after the divorce to protect your estate and your wishes.
As you can see, divorce issues for older couples are far more complex than issues a young or newly married couple face.  If you are considering divorce as a senior citizen, it is important that you speak with an experienced Virginia family law attorney with expertise in senior divorces.  Together, you and your attorney will carefully plan and prepare for all eventualities to ensure that you have the bright future you desire.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about a grey divorce and family law, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

DIY Estate Planning…Beware of Unintended Results

It sounds easy and promises “legal” results.  It’s less expensive than working with an attorney.  But estate planning is a serious process and if done incorrectly may have unexpected and expensive results.  Let’s look at five reasons why you should give those online forms or that estate planning kit a pass and consult a Virginia attorney who specializes in estate planning.

One size fits all solution

Most DIY solutions don’t contain many options.  It’s a fill-in-the-blank exercise and doesn’t address your specific or unique estate planning needs.  Your life doesn’t necessarily fit neatly in a box, so why would you expect your estate to?  The needs of a single parent are much different from the needs of a large blended family, or even an older couple with grown children and grandchildren.  One size doesn’t fit all… it usually fits no one.

It’s only as good as the person filling in the information

An estate planning attorney has a legal education and continuing education courses, as well as years of experience working with different kinds of clients with many different needs and wishes.  An online question and answer form can’t answer a client’s questions or impart legal information or advice.  It is not individualized and treats your needs and wishes exactly the same as everyone else who uses the program.   Obviously, this is no substitute for the expertise of a knowledgeable attorney who will ask the right questions and create an estate plan for your unique situation.  Remember, the unintended mistakes made today, will likely impact your children and grandchildren in the future.

Creating a comprehensive estate plan

An estate plan is not just a will.  A properly created estate plan not only specifies what happens to your assets when you die, it also plans for what happens if you become incapacitated and can no longer take care of yourself or your finances.  It should include a power of attorney and an advance medical directive that appoints someone to act on your behalf if/when you can’t act for yourself.  It may also include a trust or trusts to pass assets while avoiding probate or to take care of a person with special needs. An estate plan will also identify and address contingencies.  What should happen if a child predeceases you or you have a child after your will is drafted?  How should your assets be divided if you divorce or remarry?  A simple will may be a start, but it is not an estate plan.  A DIY solution may not cover these items and leave you with an incomplete plan that does not carry out your final wishes.

You don’t know what you don’t know!

Estate planning is rarely black and white.  There are many gray areas that are important. A DIY program may not take some of these into account.  If you’re “filling in the blanks,” or even skipping a question or part of the form you don’t feel is relevant, you may not know what you’re missing.  Even mistakes in legal language can be costly.  Estate law is governed by the state where the person resides when he/she dies, and individual state laws vary greatly on estate issues.  The Commonwealth of Virginia has very specific requirements on how to execute estate planning documents, including who must witness these documents and rules surrounding a self-proving affidavit.  A small oversight now could cause huge, and often expensive problems for your loved ones later.  Failure to follow statutory formalities for execution may invalidate the entire will.

Probate or non-probate assets

Some assets pass to your loved one through your will or trust, while other assets pass by law through specific beneficiary designations.  Items like savings bonds, certificates of deposits (CDs), life insurance, retirement accounts, and certain types of bank accounts can be designated to automatically pay at death.  A knowledgeable estate planning attorney will review all your assets and advise you on how to pass each most easily and inexpensively to the beneficiary.  Properly drafted estate planning documents take both types of assets into consideration to ensure that your estate plan follows your wishes. Drafting your own estate planning documents through a do-it-yourself program,may be a risky endeavor.  Though certainly less expensive, a DIY solution takes the most important element out of the process: the knowledge and advice of an experienced estate planning attorney with specialized education and legal training.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about estate planning, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Can I Get an Annulment in Virginia?

The simple answer is yes, but in very limited situations.  In the Commonwealth of Virginia, marriage is considered a contract between two people, and with it come obligations and certain legal rights.  Unlike a divorce, which is the dissolution of a valid marriage, an annulment is the end of an invalid marriage.  In other words, when an annulment is granted, it is as if the marriage never existed.  This rarely applies to most marriages.  The court only grants an annulment when there is a legal reason why the marriage shouldn’t have existed at all, which leaves divorce as the only legal means to end most marriages.

Grounds for an annulment

Under Virginia law, a spouse needs a legal ground to annul the marriage.  The couple cannot have the marriage annulled if they have been married for at least 2 years.  The following are the specific legal grounds for an annulment.
  • The marriage was not properly solemnized per the laws of the Commonwealth of Virginia.
  • One spouse was a bigamist and already married at the time of the marriage, and that marriage had/has not been dissolved.
  • One spouse was impotent at the time of the marriage and unable to engage in sexual relations.
  • One spouse was incompetent and wasn’t mentally able to understand and consent to marriage.
  • The spouses were related by blood and were closer than first cousins.
  • The wife was pregnant at the time of the marriage by someone other than her husband.
  • The husband fathered a child with a woman other than his wife within 10 months of the marriage.
  • One spouse was under the legal age to be married in Virginia. The legal age for marriage in Virginia is 18.  But marriage is legal at 16 with the consent of a parent or guardian or if the girl is pregnant.  A girl 14 or older may marry to prevent a statutory rape conviction.
  • One spouse committed fraud and the marriage took place because of deception. Grounds for fraud include lying about venereal disease, lying about religious beliefs, and hiding a pregnancy by another person.  Lying about your age, wealth, health conditions, and prior marriages, though fraud, are not considered to be sufficient grounds for annulment.
  • One spouse only entered into marriage because of duress, force, or fear of serious harm.
  • One spouse was a convicted felon.
  • One spouse was a prostitute without the knowledge of the other spouse.
  • The marriage was a sham. The spouses married for reasons other than the normal purposes of marriage, such as to gain immigration status.
If one or more of the grounds for annulment is not met, then the marriage must end through divorce proceedings.  Even if one party thinks they have grounds for an annulment, there is no guarantee that a judge will agree and grant one.  It is best to consult with a family law attorney to understand the grounds, process, and if this is the best way for you to proceed given your specific situation.

The difference between divorce and annulment

There are several differences and implications to annulling your marriage versus a divorce.  Unlike a divorce, the judge has no authority to make decisions about the division of marital property, assets, debts, or to order spousal support.  But, the court still has jurisdiction over child custody, visitation, and support.  Children from annulled marriages are considered legitimate, and like in a divorce, must be financially supported by both their parents. Even in the 21st century, when divorce no longer carries the stigma it once did, for some, an annulment is preferable for religious or other personal reasons.  In some cases, a person files for an annulment for financial reasons.  Unlike a divorce, if the marriage was never valid, the judge can’t make decisions about property division or spousal support.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about annulment and divorce, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

I’m Deploying! How are My Custodial and Visitation Rights Affected?

The Commonwealth of Virginia has the second largest military population in the United States.  In 2008, the legislature enacted the Virginia Military Parents Equal Protection Act, which addresses the concerns of deploying parents regarding custodial and visitation decisions. The Virginia Military Parents Equal Protection Act defines who is considered to be a deploying parent, including not only active duty but activated reserve units, and grants special rights to active duty service members with respect to custody and visitation. The Act defines a deploying parent as “a parent of a child under the age of 18 whose parental rights have not been terminated by a court of competent jurisdiction or a guardian of a child under the age of 18 who is deployed or who has received written orders to deploy with the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard, or any other reserve component thereof.” Military personnel are relocated and deployed throughout their career.  In many cases, military personnel, both enlisted and officers, are unable to actively parent their children because they are deployed in the service of our country. When this happens, custody orders and/or visitation plans may be thrown into turmoil.  The Virginia Military Parents Equal Protection Act provides legal protection to members of the military in child custody and visitation issues.  Simply put, you can’t use the fact that a parent is in the military and subject to deployment as an argument for changing the child custody and/or visitation order.

The Act allows any deploying parent to:

  • Temporarily modify the current custody and/or visitation order to ensure that the service member’s deployment status is clearly stated as the reason for a change in the order and to ensure that the matter is re-heard within 30 days of the service member’s return from deployment
  • Designate his or her physical visitation time in the existing order to a family member with whom the child has a close relationship, including the spouse (stepparent) of the deploying parent, aunts, uncles, grandparents, etc. The delegation of these rights is temporary and do not create a separate visitation right for the relative.
  • Order the non-deploying parent to facilitate phone calls, Skype, and email between the child or children and the deployed parent. The court will also require the deploying parent to provide reasonable notice to the other parent about his or her leave schedule and require the non-deploying parent to reasonably accommodate that leave during deployment.
  • Grants the deploying parent the right to file a petition with the court which specifically identifies the service member as a parent about to deploy and requires the court to place the deploying service member’s petitions before other matters on the court’s docket.
  • Allows the court to accommodate any deploying parent who is unable to appear in person due to pre-deployment training or actual deployment by allowing that parent to testify by telephone or Skype.
All orders of the court based upon a deployment are temporary and modifiable upon the service member’s return.  When the deploying parent returns, the court will give that parent priority on its docket to modify the custody or visitation arrangement again. If the non-deploying parent does not want the order that existed before the deployment to be reinstated, it will be his or her burden to show that the prior arrangement is no longer in the child’s best interests.

If you are a deploying service member:

If you’re anticipating a possible upcoming deployment, the most important thing you can do is establish a custody and visitation arrangement immediately. It is probable that you’ll be relocated again and again throughout your career.  Consult a Virginia family law attorney, experienced in military deployments, about a custody and visitation arrangement. If you let your non-military former spouse have custody of your child while you deploy, without establishing a custody and visitation schedule before you go, your former spouse could move to another state and establish residency there for your child.  That state would then have jurisdiction over custody and visitation. Virginia is particularly sympathetic to military service members, so you’ll want to keep your custody case here, if at all possible. Establishing a custody and visitation arrangement will help ensure that you can use the protection provided by the Military Parents Equal Protection Act. After you return, your custody and visitation arrangement will automatically revert to whatever it was before you left.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about military deployment, custody, and visitation, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Estate Planning Before Military Deployment

An estate plan has several objectives.  It should provide for your family’s financial security, ensure that your property is passed to your beneficiaries as you wish, and determine who will manage your assets and make sure that your estate is distributed properly after your death.  Military families need to consider some special estate planning issues that others, outside of the military, do not, especially if family members are deployed overseas.  Members of the military also have access to special benefits that may complicate their estate.  For this reason, it’s important to consult a knowledgeable estate planning attorney with expertise working with military families in Virginia.

Estate planning documents

Members of the military often move frequently, are deployed overseas to different countries, and have access to government benefits both during and after service.  They may also be subject to unexpected tax rules and issues.  Estate planning for military members and their families may be more complicated than for their civilian counterparts.  An experienced military estate planning attorney can help you with the following:
  • Wills and trusts
  • Guardianship for minor children or children with special needs
  • Financial powers of attorney
  • Advance medical directives (living wills)
  • Funeral and burial arrangements
  • Organ donation
  • Life insurance
  • Survivor benefits
  • Estate taxes
  • Family care plans
  • Beneficiary designations
  • Estate administration and/or probate

Some factors to consider

Everyone’s estate plan should be customized to that person’s specific circumstances.  Below are factors that should be considered by your estate planning attorney:
  • Are you married?
  • Do you have minor children?
  • Do you have children with special needs?
  • Do you own property? Where is it located? Is it in more than one state or country?
  • Do you have an IRA, 401k, or other retirement or pension accounts?
  • Do you have life insurance? What types?
  • What other military benefits do you have or have taken advantage of?
Though the military offers estate planning services to its members, they are often incomplete and do not necessarily include the legal requirements of the Commonwealth of Virginia.  As in most states, Virginia has some unique and specific requirements for estate planning that need to be taken into consideration.  Even if you have used the JAG Corp or your estate plan was created by an attorney in another state, it’s a good idea to have a Virginia estate planning attorney review the documents and make sure that all your needs and Virginia requirements are met.  At a minimum, your Virginia estate planning attorney should make sure the following are completed before you deploy:
  • Get your legal documents, detailed above, in order.
  • Sign up for life insurance.
  • Update all beneficiary designations.
  • Make survivor decisions on your military pension.
  • Find out about other benefits for survivors.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about military estate planning, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com

Can I Contest a Will in Virginia?

In the Commonwealth of Virginia, only interested parties can contest a will.  An interested party is an individual that has standing to challenge the estate and is usually someone who is entitled to receive property under the will.  It could also be someone who has a legal right to part of the estate, such as a spouse or someone who would be entitled to property under the laws of intestacy if the will were invalidated.  Simply being related to the decedent does not necessarily make you an interested party. Contesting a will is usually done to invalidate a portion or portions of a will presented at probate.  It can also be done to introduce another will that is believed to be the last will and testament of the decedent.

What makes a will valid under Virginia law?

Under Virginia law, the court honors only those wills considered valid.  If there is suspicion of fraud or a reason to believe that the decedent was not of sound mind or was pressured by others when drafting the document, the heirs may challenge the will in court. To create a legally valid will in Virginia you must satisfy the following 3 requirements:
  • Age:  You must be at least 18 years old.
  • Testamentary Capacity:  You must be generally of sound mind and understand the nature and extent of your estate and the natural heirs of your estate.
  • Free will:  You must create the will voluntarily, without any pressure, undue influence or fraud by others.
If a last will and testament lacks any one of these requirements, the law may consider it invalid and you may contest or challenge it in a legal proceeding. Contesting a will is a complicated and often lengthy process, so it’s important to consult with a knowledgeable and experienced Virginia estate planning attorney who can advise you on whether you have legal grounds for contesting the will and/or identify the ground(s) for challenging the will.  Contesting a will in Virginia requires more than claiming that the individual contesting it was treated unfairly.  In other words, you can’t challenge a will because you don’t like what it says.

Contesting a will

Most wills go through probate unchallenged.  As a general rule, the courts are reluctant to interfere with the wishes of a person as reflected in a last will and testament.  Unless challengers to a will can establish undue influence, lack of testamentary capacity, or other legal issues to invalidate the entire document or certain portions of it, the courts attempt to carry out the last wishes of the testator. Proving fraud or the deceased’s lack of free will is hard to do and usually results in a prolonged and costly legal battle.  It may be easier to prove that the will was invalid for technical reasons, such as improper witnesses, failure to follow the requirements for creating and executing a will under Virginia law, or because there is another valid will.

Estate disputes

The attorneys at Melone Law offer services that address the following estate dispute issues:
  • Disputes over the executor’s compensation
  • Estate and probate administration management disputes
  • Disputes about how the will was drafted
  • Probate
  • Joint property disputes
  • Will and trust disputes
  • Distribution of assets
  • Tax controversies or claims
  • Guardianship documentation
  • Undue influence allegations
  • Fraud
  • Testator Competency issues
  • Inheritance and family planning

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about wills and estate planning, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

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