Year: 2019

Now That I Have Custody, Can I Move?

Once the dust has settled after a custody trial or divorce, one of the first questions I am frequently asked is: Can I move? The answer, unfortunately, is not always simple. The ability to move depends on the reasons provided, the relationships between each parent and the child, the distance involved, and several other factors. 

Notice is Required 

In any case involving custody, the court will require a minimum of 30 days advance written notice prior to any relocation pursuant to Virginia Code Section 20-124.5. In some situations, more notice may be required. For example, parties who reach a settlement agreement may add additional time requirements or limitations on the ability to relocate. 

The notice requirement is designed to protect parents that object to the relocation and provide an opportunity for the court to make a determination regarding the move. Whether or not the minor child will be allowed to move with the parent is determined according to the best interests of the child. 

Both the custodial and noncustodial parent must provide notice prior to any relocation, even if the move is only a short distance. Any change in a parent’s residence can have an impact on the parties’ ability to coordinate visitation for the child. 

Relocation Factors 

If a custodial parent wishes to relocate with the child, they will have to demonstrate that the move is in the child’s best interests. In addition, the court will focus on the following factors: 

            1) The effect relocation will have on the relationship between the noncustodial parent and the child; 

            2) How drastically the relocation will impact the noncustodial parent’s visitation with the child; 

            3) The reasons for the move, including contact with extended family, economic stability, and employment opportunities. 

Best Interest of the Child

If the move is only for a short distance and visitation can still be done on the same schedule, it’s unlikely the court will deny the relocation. However, any move that will require a change to the visitation schedule will require a higher burden to show that the move is in the child’s best interests under 20-124.3. Among the factors the court will consider are the willingness of each parent to facilitate and support the child’s contact with the other parent, the needs and important relationships of the child, and the role each parent has played in the upbringing and care of the child.

No relocation case is straightforward and any missed deadline can have a serious impact on your custodial rights. 

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 relocation cases, 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 Top 5 Myths of Estate Planning


1. I’m young, so I don’t need a Will.  

Even if you don’t have a large estate, you may disagree with how Virginia’s laws will handle distribution of the assets. You may wish to leave items of sentimental value to certain individuals, including friends and distant relatives, over your nearest blood relatives. For those with mixed families, it’s essential to designate how you want your assets distributed to avoid any unintended results.

2. I don’t need a Will if I have a power of attorney. 

A power of attorney loses its authority when the individual dies. Without a designated agent named as executor or personal representative, the court will need to appoint an administrator to pay your final expenses and manage distribution of the estate. 

3. I’m married, so I don’t need a Will. 

You may not want your spouse to inherit your entire estate. Consider the possibility that your spouse may find a new partner, or have extended family, that you may not want to receive the benefit of your estate. A proper plan allows you to preserve a benefit for both your spouse as well as for children, grandchildren, or others.

4. I have a trust, so my assets are protected. 

A revocable living trust does not shield all assets from business risks, creditors, or lawsuits. Since the trust can be amended or revoked at any time, any assets held in trust are open to claims from third parties. In certain situations, an irrevocable trust can provide protection for certain assets, but several criteria must be met. 

5. Probate is expensive and difficult. 

For those with an estate valued under $50,000, the probate process is simple and cost-effective. Proper use of beneficiary designations can reduce or eliminate the need for any assets to pass through probate. 

The Bottom Line

The only way to know if what estate plan is best for you is to have it evaluated by a professional. Melone Law P.C. offers free estate planning consultations and flat fees for most estate planning packages. Call to schedule your consultation at the Virginia Beach office at 757-296-0580 or the Northern Virginia office at 703-995-9900. 

Do I need a Separation Agreement in Virginia?

Virginia only has one requirement to initiate a legal separation: start sleeping separately from your spouse. Time spent living under the same roof can qualify as living separate and apart with the intent to separate permanently, as long as the parties do not share a bedroom. It is strongly recommended that parties have a written agreement as to when separation began in order to avoid future conflict. At times spouses will separate temporarily and reconcile for a period later. Or, they may stay in separate rooms while participating in counseling or other efforts to reconcile, evidencing the intent to reunify the marriage. 

In all cases, even those with no children or assets, it is strongly advisable to have a written separation agreement prior to initiating a case for divorce, even if the parties have a verbal understanding. Once the process begins, it can be difficult to “back out” of court if your spouse decides to contest any piece of the case, including the separation date. 

What does a separation agreement include? 

Any separation agreement should include the following key elements to avoid later disputes: 

  • the date separation began, 
  • grounds for divorce as well as the court where the case will be filed, 
  • agreed division of assets (or mutual waiver), including any real estate, investment accounts, and retirement accounts
  • agreed division of debts (or mutual waiver), including all loan accounts, credit cards, title loans, or other separate or marital debts,
  • child custody and visitation terms, including a specific visitation schedule,
  • spousal support or waiver, 
  • child support. 

The act of simply moving out of the marital home can be viewed or argued as abandonment later in the case, so it’s best if parties can show evidence of separation or an agreement to separate prior to one party leaving the residence. Any obligation of the parties on a mortgage or lease agreement are not eliminated by one spouse leaving, so it’s important to have an understanding of who will pay for which joint obligations. 

What do we do about custody?

If one party leaves the home and takes the minor children, it can be viewed by the court as withholding of the children from the other parent. Parties with children should be especially cautious to avoid withholding of visitation to the other parent or transferring children into another school. The court wants to see everything remain as close to normal as possible for minor children, as they are already likely facing a stressful time. 

Spouses should be cautious about moving too far from the marital home so that visitation can be achieved with minimal impact to the children’s school, social, and extracurricular activities. 

Your separation agreement should be extremely clear about the obligations of each parent to one another and to the children. There should be a written schedule for visitation including specific times and locations for pickup and drop-off and when each parent’s custodial time begins and ends. 

Do I need an attorney? 

Virginia does not require separation agreements to be written by an attorney, but they are not simple documents to draft. Most separation agreements that cover all necessary areas range in length from 20-60 pages and go into specific detail about each party’s obligations, which can avoid future disputes. A poorly drafted separation agreement can mean the parties end up litigating over missing or vague terms, or necessary modifications in the future. A separation agreement can be key to avoiding an expensive and drawn out divorce case and should not be taken on lightly. 

Before writing or signing a separation agreement, both parties should consult with a knowledgeable family law attorney who can advise them of their rights and likely outcomes if they were to take the case to trial. Certain rights, like spousal support, should never be waived without first obtaining legal advice. That way each party can enter into the agreement knowing the risks and potential benefits of litigation and they can each make better informed decisions. 

Just because you and your spouse are on friendly terms now does not mean it will always stay that way. Separation usually results from tumultuous or difficult relationships and even the most well-meaning parties can have disputes in the future. If language in your separation agreement is vague, faulty, or not laid out properly, you may be forced either to go to court or to live with the terms of an unfavorable agreement. 

Why is a separation agreement important?

If you have absolutely no marital property, no debts, and no children, you may not need a marital separation agreement to get a no-fault divorce. But remember, any assets, property, or money accumulated during the marriage is considered to be marital. In any case, a separation agreement provides for the future governance of your relationship, and also provides evidence to the court as to the date that you separated.  It can be the difference in waiting 12 months versus six months for a no-fault divorce. When properly drafted, this document leaves no doubt about the details of the ending of your marriage relationship.  It is always better to have a clearly written and signed agreement than to rely on verbal understandings.  In addition, if you have a Virginia separation agreement, your divorce proceeding will be simpler and it will be clear to the court that you have an uncontested divorce.

A separation agreement is a legal document that will determine your rights, obligations, and responsibilities from your marriage over many years into the future.  A Virginia family law attorney spends considerable time drafting separation agreements with the goal of protecting your rights and avoiding future disputes.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm with offices in Virginia Beach and Northern Virginia. 

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 separation agreements and our family law practice, contact our Virginia Beach office at 757-296-0580 or our Northern Virginia office at 703-995-9900.

Can I Get Custody of My Grandchild?

In some cases a grandparent may want to petition for full custody of their grandchild where the child’s parent suffers from mental health problems, drug or alcohol addiction, or has been abusive or neglectful of the child in the past. In such cases the court will consider both the continuing relationship between parent and child as well as the best interests of the child. 

In Virginia, any person with a “legitimate interest” can petition the court for custody. Persons with a legitimate interest include not only grandparents, but also step-parents, former step-parents, blood relatives, or other family members. Parents are entitled to a presumption of custody over all others, meaning the burden for non-parents to obtain custody over a parent’s objection is higher than in other cases. The court must balance the best interests of the child against the parent’s fundamental and constitutional rights to make decisions for their own child. 

The natural parent is entitled to a presumption above all others with a legitimate interest, unless the court can find one of the following factors: 

                        1) parental unfitness, 

                        2) previous order of divestiture, 

                        3) voluntary relinquishment, 

                        4) abandonment, 

            5) special facts and circumstances constituting an extraordinary reason for taking a child from a parent. 

If a grandparent can establish one of the above factors then they stand on equal footing with the biological parent in petitioning for custody. Then the court will look to the best interests of the child factors in 20-124.3 to make its decision. The factors are:  

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

Parental rights have always been recognized and respected by common law and statute. However, the primary focus in any custody dispute is the best interest of the child. If the best interest of the child is better served by third party custody, the court can transfer custody away from a parent. 

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.

 

I don’t have an “estate,” why do I need a plan?

The term “estate planning” can be a bit of a misnomer. The term “estate” can summon images of a stately manor full of housekeepers and stables out back. The truth is that every single person has an “estate” – whether that means assets, liabilities, or dependents that rely on them for everyday care and financial support. 

So why does everyone need a plan? Oftentimes family members will disagree about what your wishes would have been, which can lead to more confusion and difficulty during an already hard time. You can use estate planning tools to prevent these problems and make transitions as smooth as possible for your loved ones. Below are some essential areas of estate planning that apply to everyone, regardless of wealth. 

Guardianship for Minor Children

Although there will still be requirements for a court proceeding, a will can designate who you want to care for your children in the event something happens to both parents. You can specifically outline your wishes for where you want your children to be raised and whether you want them versed in a particular religion. Your chosen guardians will have to petition the court and get formally appointed, but you can minimize any confusion or conflict between your loved ones by creating a specific appointment in your will. 

Naming an Executor

Families are complicated and family dynamics during stressful times can cause conflict and damage relationships.  Feuding siblings are probably the most common cause of litigation over an estate.  It’s often best to name an objective, independent representative as executor of the estate, another family member or close friend, instead of one of your children. Even if the estate is to be divided equally between siblings, giving the ultimate decision-making power to one of your children may be a recipe for disaster. An independent representative, whose only allegiance is to your wishes, will settle the estate and potential disputes fairly.

Gifting Important Personal Items 

The death of a loved one often doesn’t bring out the best in relatives, especially when it comes to heirlooms and other valuable or meaningful items owned by the deceased.  To keep family members from squabbling over, stealing, or hiding items that they want, talk with your children, grandchildren, and other family members now about which possessions mean the most to them.  Then put it in writing.  Clearly list exactly what you want to bestow on each heir and where it is kept, and attach this list to your estate planning documents.  Remember, it’s easy to challenge a “verbal” agreement in court, but much more difficult to disprove a written one.

Naming a Financial and Healthcare Power of Attorney

Having a Durable Power of Attorney and Advance Healthcare Directive in place means your loved ones won’t have to guess or argue about who should be in charge of making important decisions on your behalf if you become incapacitated. These documents can not only avoid conflict and confusion for your family members, but they can also mean avoiding costly and time-consuming guardianship and conservatorship proceedings through the court. 

In an Advance Healthcare Directive you can clarify your wishes regarding life-support and life-sustaining treatment, as well as your position regarding organ donation. These are areas where every individual may have a slightly different opinion, so being clear about your beliefs and wishes can provide peace of mind for those taking care of you. 

About Melone Law, P.C.

Melone Law, P.C. is a family and estate firm serving Virginia Beach and Northern Virginia. 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 Reston office today at 703.995.9900 or Virginia Beach at 757.296.0580 or visit our website: www.MeloneLawPC.com

 

The Top 5 Common Mistakes When Choosing Life Insurance Beneficiaries

So you’ve made the responsible decision and purchased a life insurance policy to ensure your dependents will be cared for in the unfortunate event something happens to you. Naming a beneficiary should be the easy part, right? But mistakes made when choosing your beneficiary can lead to unforeseen consequences. 

When a mistake happens, it can mean added difficulty, stress, and a financial burden on those you intended to benefit. Below are 5 of the most common mistakes made when choosing a life insurance beneficiary. 

1. Naming a minor child. 

            While an adult beneficiary will receive funds outright, life insurance proceeds will not be paid directly to a minor. Instead, the court will have to appoint a guardian to manage the funds until the child reaches the age of majority. Going through guardianship proceedings can be costly, especially if they are contested. Designating a guardian for minor children in your will does not solve the problem either – the court will have to ultimately appoint someone to act on behalf of the minor. 

            The better alternative is to establish a trust as beneficiary of the policy and to name a trusted adult or financial institution to manage the funds on behalf of your child. 

2. Naming your estate. 

            Designating your estate as beneficiary of a life insurance policy reduces some of the benefit of holding the policy. Funds will have to be transferred to your heirs through probate with court oversight, meaning a longer wait, and will be subject to any outstanding claims from creditors as well as taxes and fees. 

3. Naming young-adult children.

            Life insurance proceeds will be paid to an adult child beneficiary without taxes, fees, oversight, or direction as to how funds can be used, meaning they can be spent immediately on anything. In addition, the funds will count as an asset for FAFSA purposes, meaning a potential loss of eligibility for student loans. Adult children with special needs could also lose eligibility for government assistance from SSI and Medicaid. 

            Again, the better alternative is to establish a trust for the benefit of your adult child. Funds can be used for education, living expenses, and anything else designated by the trust or in your trustee’s discretion. However, trust assets will not be considered for FAFSA purposes and can avoid the loss of government assistance programs. 

4. Naming only one beneficiary and/or forgetting to update your beneficiary. 

            You have the option to name several backup beneficiaries to plan for every contingency. If your primary beneficiary pre-deceases you, don’t let the payout go through probate! See #2 above.   

If you go through a divorce or have another significant life event, you should double-check your policies and update your beneficiaries. A designated beneficiary on your policy will always trump whatever else is in your estate plan. Even if you’ve been divorced, if your ex-spouse is named on the policy, they will receive the benefit. 

It’s a good idea to double check your beneficiary designations every 3-5 years to make sure they are up to date. You should provide as many details as possible for each beneficiary including their SSN, address, and contact phone numbers. 

5. Increasing your tax burden. 

            If the insured, policy owner, and beneficiary are three separate people, then any payout could be subject to gift taxes. In such an instance, the policy owner would be taxed for making a gift, if the policy amount exceeds federal limits. 

            This issue can be avoided by making sure the insured is also the policy owner in most instances. In some cases, usually involving divorce or child support, the policy owner and insured will be different parties. In those cases it may be advisable for the policy owner to keep themselves named as the beneficiary, if allowable under the order.  

Life insurance is an important aspect of any estate plan so take the time to learn about your options and ensure your resources reach your intended beneficiaries. For an estate plan evaluation contact Melone Law P.C. in our Northern Virginia office at 703-995-9900 and in Virginia Beach at 757-296-0580. 

 

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