Month: January 2020

Is Mediation Right for My Case?

Is Mediation Right for My Case? 

The divorce process can be unfamiliar, stressful, and painful during an already difficult time in your life. Facing the legal system for the first time while dealing with personal affairs can add complication. Cases that go through litigation often take months, or even years before they are resolved. Along the way are numerous motions, exchanges of documents, investigations, and lots of back and forth between attorneys. The system is means to be adversarial, which can make it difficult, if not impossible, for parties to continue to work together to co-parent their children or deal with joint assets or other family affairs as necessary. 

Most parties end up settling their divorce case before they ever go to trial whether it’s through mediation, negotiation, or another alternative dispute resolution effort. Parties who see the potential of mediation can benefit financially and emotionally from resolving their case more quickly and fairly than it may end up in court. 

What is Mediation?

Mediation is the process of negotiating a case with the assistance of a neutral third party, called a mediator. Most mediators are retired judges or attorneys who have decades of experience. Each party usually has their own representation and their own attorney during the mediation process. Mediators all have their own process, but most frequently the parties all meet together before splitting into separate rooms with the mediator traveling back and forth making offers. 

The mediator cannot offer either party legal advice, which is why bringing your own attorney can make all the difference in ensuring a fair outcome. The mediator’s job is to find a middle ground between each party’s position and facilitate the negotiations to a meeting point. Most mediators take one issue at a time and work to resolve each one, creating a full written agreement at the end of the session. 

Mediation can have a number of benefits over litigation so long as both parties are willing to participate in the process. 

Creative Solutions

In court everything is left in the hands of a judge, who doesn’t know the whole history of your relationship, your family, or what’s best overall for your situation. Judges are limited to following the relevant case law and statutes, and aren’t able to use creative solutions to most problems. Judges can only consider the evidence before them, meaning that hearsay or other evidence may be properly excluded from consideration. Mediators, on the other hand, can help parties find solutions that work for them, even if they wouldn’t be ordered in court. Mediators can hear all kinds of evidence, including evidence that may not be admissible in a trial as hearsay. Parties that reach a resolution through mediation are more likely to follow through on their obligations, since they found the terms agreeable to begin with. 

In cases involving custody, flexible solutions can make all the difference in the parties’ ability to co-parent moving forward. Courts offer more traditional visitation schedules, meaning one party usually gets alternate weekends and a midweek evening visitation. That schedule is not ideal for most families, especially where parents have been sharing custodial responsibilities equally. Agreements made outside of court offer both parents more time and flexibility, which can make co-parenting together easier after the case is over.   

Save Embarrassment

Everything filed in court is a public record, and absent special circumstances, anyone can watch a trial in a Virginia Circuit Court. Usually the circumstances leading to a divorce are quite private, and can be embarrassing, which can motivate a party toward settlement. 

The grounds for divorce in Virginia are limited to cruelty, desertion, adultery, felony conviction, or separation. Contentious cases will involve detailing private, painful events from the parties’ history in order to obtain a divorce. Mediation offers confidentiality for both sides while still offering an opportunity for each party to share their story. 

Save Time

Parties that want a quicker resolution of their case can benefit from mediation. In a litigated case, there are certain waiting periods and filings that are required before hearing dates can be set. Depending on the court’s availability, a hearing may not be scheduled for several months, leaving the parties in limbo in the meantime. Many divorce cases take at least a year before they are set for a trial, which can create financial and emotional stress on both sides. 

Save Costs 

On it’s face, it would appear mediation is expensive. Mediators don’t work for free, and often have comparable or higher fees than most attorneys. Having each side hire their own attorney and covering the cost of the mediator would appear more expensive than going to court, however, in most cases it is substantially cheaper. 

Going through mediation means skipping a lot of the procedure, and accompanying attorney’s fees, that go into most cases. One of the most expensive processes is discovery, where parties request and exchange financial and other documents that may be relevant to their case. By going through mediation, evidence can be offered and exchanged informally. 

Preparing and conducting a trial is a huge expense. Having an attorney spend hours of preparation and ensuring that all evidence is presented properly can mean serving subpoenas, bringing in (and paying for) experts to testify, along with preparing and researching the relevant case law.

Consider Mediation

Divorce is an emotional time and it’s easy to make mistakes that may come back to haunt you in the future. Keep a level head and consider all of the options available to you. Consult your attorney and don’t be afraid to ask questions.  Being thorough now will make your life much easier after the divorce is final. 

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Virginia Beach and Reston.  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 divorce, separation agreements, and our family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com

What is a Transfer on Death Deed?

Estate planning comes in all shapes and sizes. It includes updating beneficiary designations on financial accounts and insurance policies, adding joint owners to accounts, and gifting personal property items during one’s life. Estate planning is about maximizing the financial benefit for your heirs and ensuring smooth and simple transfers of property. Oftentimes avoiding probate means keeping transfers smooth and minimizing the costs and time involved in facilitating a transfer. 

For many families, real estate is among the largest, if not the largest, asset to move in an estate. You can designate a beneficiary for your real estate using a traditional will, which means the property passes through probate. In probate, your personal representative (or “executor”) collects the assets of the estate and distributes them according to your wishes. The process involves attending an appointment at the probate office, payment of fees, and ongoing reporting requirements to the court. But Virginia has a better alternative: the transfer on death deed. 

How Does It Work?

A transfer on death deed operates exactly the way it sounds. During the grantor’s life, there is no transfer or gift of the property. The deed is recorded during the grantor’s life but only goes into effect upon their death. Once the grantor passes, ownership of the real estate automatically transfers to the designated beneficiary, outside of any trust, will, or intestate probate process. 

Just like utilizing your beneficiary designations on retirement, investment, and other financial accounts, use of a transfer on death deed means a smoother transition for your beneficiaries and less red tape from the court and probate process. 

When ownership in the real estate transfers, the new owner can immediately list the property for sale, rent, or take any other action necessary to preserve the asset for the future. 

Statutory Authority

The authority for a transfer on death deed has only been around since 2013 in Virginia. They are governed by the Uniform Real Property Transfer on Death Act (URPTODA), and codified in Virginia Code Section 64.2-621. 

How does it work? 

The grantor is responsible for preparing and filing the transfer on death deed with land records during his or her life. They can choose one or more beneficiaries, and even joint beneficiaries to receive the property after death. A transfer on death deed is always revocable during the life of the grantor, but the revocation has to be in writing and recorded with land records in order to be effective. These transfers are considered “nontestamentary,” i.e. not subject to probate or modifiable by a will. The formalities are listed in detail in Virginia Code Section 64.2-628:

1. Except as otherwise provided in subdivision 2, shall contain the essential elements and formalities of a properly recordable inter vivos deed;

2. Shall state that the transfer to the designated beneficiary is to occur at the transferor’s death;

3. Shall be recorded before the transferor’s death in the land records of the clerk’s office of the circuit court in the jurisdiction where the property is located;

4. Shall comply with the requirements for recordation set forth in Chapter 6 (§ 55.1-600 et seq.) of Title 55.1 and shall be indexed by the clerk of court under the name of the transferor as grantor;

5. Unless the transfer is for consideration, shall be exempt from recordation tax as provided by subsection J of § 58.1-811;

6. For property owned by joint owners to be effective, shall be executed by all joint owners; and

7. Shall be considered a deed for purposes of complying with the requirements of § 17.1-223.

A transfer on death deed can be an invaluable tool in your estate plan and often costs significantly less than other methods for avoiding probate.

About Melone Law P.C.

Melone Law, P.C. is an 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 transfer on death deeds and 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

Am I Eligible for an Annulment?

Annulments are available in very limited situations in Virginia. Marriage is a contract between two people, and it comes with certain rights and obligations that are ordinarily only terminated with a divorce. A divorce, in addition to dissolving a marriage, can carry with it other economic requirements for support and division of assets. An annulment on the other hand, dissolves the marriage without any other economic remedies. Annulments are designed to terminate marriages that were invalid, or voidable, from their inception. 

Grounds for an Annulment in Virginia 

A marriage may either be void or voidable. A void marriage does not require any procedure in order to terminate it, it was invalid from the beginning. A voidable marriage requires the filing of an annulment and a hearing in order to be dissolved. Virginia Code Section 20-89.1 provides the following grounds for an annulment in Virginia:

            Void Marriages

  • The marriage was not properly solemnized per the laws of the Commonwealth of Virginia – meaning there was no marriage license or ceremony. 
  • One spouse was a bigamist and already married at the time of the marriage, and that marriage had/has not been dissolved.
  • The spouses were related by blood and were closer than first cousins.
  • One spouse was incompetent and wasn’t able to understand and consent to the marriage. 
  • The spouses were both under the age of 18. 

Voidable Marriages

  • One spouse was impotent at the time of the marriage and unable to engage in sexual relations. 
  • 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 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 there are no grounds for an annulment, the parties will have to petition for a divorce in order to terminate the marriage. 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 in an annulment.  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 21stcentury, when divorce no longer carries the stigma it once did, an annulment can be preferable for religious or other personal reasons.  In some cases, an annulment is preferable for financial reasons where a client wants to protect their assets from division. 

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.

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