Author: Rebecca Melone

What is “status quo” in custody cases?

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

Anyone that has gone through a custody or visitation battle in court, or is about to, may have heard the term “status quo.” Status quo, in terms of custody and visitation, means the schedule the parties have been following prior to court. The court will consider what’s normal for the children and parents in setting a visitation schedule. So, if one parent leaves the home without the children, it is unlikely that parent will ultimately get primary physical custody.

Statutory Basis

The courts in Virginia have gone to great lengths to try and dispel the idea that status quo is a factor in determining custody and visitation. In fact, Virginia Code 20-124.3—the best interest of the child standard – does not mention status quo directly. However, it is disingenuous for the courts to claim that status quo does not play a part when so many elements of the Virginia Code 20-124.3 ultimately rely on the pattern the parties have been following prior to litigation.

In order to fully understand how status quo impacts what the court considers to be in the best interest of the child when determining custody and visitation cases, it is important to review all ten factors of Virginia 20-124.3; but the following weigh the most heavily:

 

  • Factor (3): Which deals with the relationship existing between each parent and child strongly relies on status quo. If one parent left the home, and other parent has been taking care of the daily needs of the child; that parent is going to have a different relationship than the parent that left the home. The court will strongly favor keeping the child with the parent who has been handling the day-to-day needs of the child;
  • Factor (5): The role that each parent has played and will play in the future again heavily relies on status quo. In the example where one parent leaves the home, the court is going to consider that parent’s role to have been minimal and, for continuity, work to give the child the same contact with that parent.
  • Factor (7): The ability of each parent to maintain a close relationship with the child also relies heavily on status quo. The court will consider that the parent who does most of the day-to-day care has the closest relationship with the child.

Separation Makes Time-sharing Difficult

Any parent who is going through a separation understands the harsh reality that equally splitting time with a child is difficult; especially when the parents are not getting along. In addition to the relationship factors, there are also financial issues that arise—it is not always possible for the parents to separate and then live close enough to exercise an equal custody arrangement. Transferring the children back and forth during the week may not be possible given the children’s school and extracurricular programs and childcare availability.

Parental Alienation Issues

The most frustrating situation is when one parent takes the children and leaves and then blocks the other parent from having time with the children. In these instances, even though the other parent is blocking access to the children, which would be relevant to Virginia 20-124.3(6), the court may still side with the offending parent based on the status quo. It is important that if you are being alienated from your child that you act quickly and get your custody and visitation case before the court before a new pattern or status quo is established.

Contact Melone Hatley, P.C.

The custody and visitation attorneys at Melone Hatley, P.C. have the experience necessary to help navigate you through all of these situations and ensure the best possible outcome for your matter. For more information about our family law practice, 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. You can also schedule a time for a free consultation with one of our attorneys online at www.melonelawpc.com/contact.

Can You Be Fired For Taking Paternity Leave?

Written by Rebecca Melone on . Posted in Family Law.

The short answer, unfortunately, is yes. A new ruling out of New York makes it clear that federal protections under Title VII are gender specific and only designed to apply to “a pregnant employee.” In the case of Van Soeren vs. Disney Streaming Service, a male employee of Disney claimed that he was subject to harassment and mistreatment from his co-workers after they found out his wife was pregnant. After taking his approved paternity leave, he was ultimately fired. US District Judge Naomi Reice Buchwald, a Clinton appointee, held that the plaintiff didn’t have standing as discrimination suits under Title VII are designed to protect “pregnant” employees. It does not protect spouses of pregnant parties.  Neither does it protect adoptive parents.

An Unfair System

This ruling not only limits Title VII protections based on gender, but also disqualifies adoptive parents. The ruling highlights the unfair treatment of new parents based on gender or adoptive status. Fathers are currently provided significantly less paternity leave, and are often limited to unpaid leave. According to the Department of Labor, only 13% of men who took paternity leave were offered paid paternity leave and 70% of fathers who took time off, took less than 10 days[1]. Fathers or adoptive parents may be less inclined to take family leave if they know they can be penalized when they return to work.

Hurting Families

During an essential time in a child’s development, limiting time with new parents can be damaging. Time at home is essential for parents to bond with their children as well as for the child’s healthy development. One study found that the fathers who took more than two weeks off for paternity leave were much more engaged with care of the children after nine months[2]. It has also been demonstrated that when fathers are more engaged in the care of their children it leads to improved cognitive and mental health of the child[3].

While companies have made great progress in providing maternity and paternity leave for expecting parents, this is a sign that there is a still a lot of work that needs to be done in our courts and legislative branches to ensure expecting parents enjoy equal rights under the law. Limiting protections under Title VII to “pregnant” employees has an extremely unjust result to fathers and adoptive parents and can negatively impact children.

About Melone Hatley, P.C.

Melone Hatley, P.C. is a general practice law firm with offices in Reston and Virginia Beach. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/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 our family law practice, 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. You can also schedule a time for a free consultation with one of our attorneys online at www.melonelawpc.com/contact.

 

[1] https://www.dol.gov/sites/dolgov/files/OASP/legacy/files/PaternityBrief.pdf
[2] Nepomnyaschy and Waldfogel (2007) at 442-45
[3] Huerta, et al (2013); Nepomnyaschy and Waldfogel (2007); Anna Sarkadi, et al. 2008. “Fathers Involvement and Children’s Developmental Outcomes: A Systematic Review of Longitudinal Studies.” Acta Pediatrica 97: 153-158; Erini Flouri and Ann Buchanan. 2002. “The Role of Father Involvement in Children’s Later Mental Health.” Journal of Adolescence 26: 63-78.

Wealth Transfer Strategies to Consider in an Election Year

Written by Rebecca Melone on . Posted in Estate Planning, Irrevocable Trusts.

With a push by the Democratic party to return federal estate taxes to their historic norms, taxpayers need to act now before Congress passes legislation that could adversely impact their estates. Currently, the federal estate and gift tax exemption is set at $11.58 million per taxpayer. Assets included in a decedent’s estate that exceed the decedent’s remaining exemption available at death are taxed at a federal rate of 40 percent (with some states adding an additional state estate tax). However, each asset included in the decedent’s estate receives an income tax basis adjustment so that the asset’s basis equals its fair market value on the date of the decedent’s death. Thus, beneficiaries realize capital gain upon the subsequent sale of an asset only to the extent of the asset’s appreciation since the decedent’s death.

 

If the election results in a political party change, it could mean not only lower estate and gift tax exemption amounts, but also the end of the longtime taxpayer benefit of stepped-up basis at death. To avoid the negative impact of these potential changes, there are a few wealth transfer strategies it would be prudent to consider before the year-end.

 

Intrafamily Notes and Sales

 

In response to the COVID-19 crisis, the Federal Reserve loweredthe federal interest rates to stimulate the economy. Accordingly, donorsshould consider loaning funds or selling one or more income-producing assets, such as an interest in a family business or a rental property, to a family memberin exchange for a promissory note that charges interest at the applicable federal rate. In this way, a donor can provide a financial resource to a family member on more flexible terms than a commercial loan. If the investment of the loaned funds or income resulting from the sold assets produces a return greater than the applicable interest rate, the donoreffectively transfers wealth to the family members without using the donor’sestate or gift tax exemption.

 

Swap Power for Basis Management

 

Assets such as property or accounts gifted or transferred to an irrevocable trust do not receive a step-up in income taxbasis at the donor’s death. Gifted assets instead retain the donor’s carryover basis, potentially resulting in significant capital gains realization upon the subsequent sale of any appreciated assets. Exercising the swap power allows the donor to exchange one or more low-basis assets in an existing irrevocable trust for one or more high-basis assets currently owned by and includible in the donor’s estate for estate tax purposes. In this way, low-basis assets are positioned to receive a basis adjustment upon the donor’s death, and the capital gains realized upon the sale of any high-basis assets, whether by the trustee of the irrevocable trust or any trust beneficiary who received an asset-in-kind, may be reduced or eliminated.

 

Example: Phoenix purchased real estate in 2005 for $1 million and gifted the property to his irrevocable trust in 2015 when the property had a fair market value of $5 million. Phoenix dies in 2020, and the property has a date-of-death value of $11 million. If the trust sells the property soon after Phoenix’s death for $13 million, the trust would be required to pay capital gains tax on $12 million, the difference between the sale price and the purchase price. Let us say that before Phoenix died, he utilized the swap power in his irrevocable trust and exchanged the real estate in the irrevocable trust for stocks and cash having a value equivalent to the fair market value of the real estate on the date of the swap. At Phoenix’s death, because the property is part of his gross estate, the property receives an adjusted basis of $11 million. If his estate or beneficiaries sell the property for $13 million, they will only pay capital gains tax on $2 million, the difference between the adjusted date-of-death basis and the sale price. Under this scenario, Phoenix’s estate and beneficiaries avoid paying capital gains tax on $10 million by taking advantage of the swap power.

 

Grantor Retained Annuity Trust

 

A grantor retainedannuity trust (GRAT) is an efficient way for a donor to transfer asset appreciation to beneficiaries without using, or using a minimal amount, ofthe donor’s gift tax exemption. After the donor transfers property to the GRAT and until the expirationof the initial term, the trustee of the GRAT (often the donor for the initial term) will pay the donor an annual annuity amount. The annuity amount iscalculated using the applicable federal rate as a specified percentage of the initial fair market value of the property transferred to the GRAT. A Walton or zeroed-out GRAT is intended to result in a remainder interest (the interest that is considered a gift) valued at zero or as close to zero as possible. The donor’s retained interest terminates after the initial term, and any appreciation on the assets in excess of the annuity amountspasses to the beneficiaries. In other words, if the transferred assets appreciate at a rate greater than the historic low applicable federal rate, the GRATwill have succeeded in transferring wealth!

 

Example: Kevin executes a GRAT with a three-year term when the applicable federal rate is 0.8 percent. He funds the trust with $1 million and receives annuity payments of $279,400 at the end of the first year, $335,280 at the end of the second year, and $402,336 at the end of the third year. Assume that during the three-year term, the GRAT invested the $1 million and realized a return on investment of 5 percent, or approximately $95,000. Over the term of the GRAT, Kevin received a total of $1,017,016 in principal and interest payments and also transferred approximately $95,000 to his beneficiaries with minimal or no impact on his gift tax exemption.

 

Installment Sale to an Irrevocable Trust

 

This strategy is similar to the intrafamily sale. However, the income-producing assets are sold to an existingirrevocable trust instead of directly to a family member. In addition to selling the assets, the donor also seeds the irrevocable trust with assets worth at least 10percentof the assets being soldto the trust. The seed money is used to demonstrate to the Internal Revenue Service (IRS) that the trust has assets of its own and that the installment sale is a bona fide sale. Without the seed money, the IRS could recharacterize the transaction as a transfer of the assets with a retained interest instead of a bona fide sale, which would result in the very negative outcome of the entire interest in the assets being includible in the donor’s taxable estate. This strategy not only allowsdonors to pass appreciation to their beneficiaries with limitedestate and gift tax implications, but also gives donors the opportunity to maximize their remaining gift and generation-skipping transfer tax exemptions if the assets sold to the trust warrant a valuation discount.

 

Example: Scooby owns 100 percentof a family business worth $100 million. He gifts $80,000 to his irrevocable trust as seed money. The trustee of the irrevocable trust purchases a $1 million dollar interest in the family business from Scooby for $800,000 in return for an installment note with interest calculated using the applicable federal rate. It can be argued that the trustee paid $800,000 for a $1 million interest because the interest is a minority interest in a family business and therefore only worth $800,000. A discount is justified because a minority interest does not give the owner much, if any, control over the family business, and a prudent investor would not pay full price for the minority interest. Under this scenario, Scooby has removed $200,000 from his taxable gross estate while only using $80,000 of his federal estate and gift tax exemption.

 

Spousal Lifetime Access Trust

 

With the threat of a lowered estate and gift tax exemption amount, a spousal lifetime access trust (SLAT) allows donorsto lock in the current, historic high exemption amounts to avoid adverse estate tax consequences at death. The donor transfers an amount up to the donor’s available gift tax exemption into the SLAT. Because the gift tax exemption is used, the value of the SLAT’s assets is excluded from the gross estates of both the donor and the donor’s spouse. An independent trustee administers the SLAT for the benefit of the donor’s beneficiaries. In addition to the donor’s spouse, the beneficiaries can be any person or entity including children, friends, and charities.The donor’s spouse may also execute a similar but not identical SLAT for the donor’s benefit. The SLAT allows the appreciation of the assets to escape federal estate taxation and,inmost cases, the assets in the SLAT are generally protected against credit claims.Because the SLAT provides protection against both federal estate taxation and creditor claims, it is a powerful wealth transfer vehicle that can be used to transfer wealth to multiple generations of beneficiaries.

 

Example: Karen and Chad are married, and they are concerned about a potential decrease in the estate and gift tax exemption amount in the upcoming years. Karen executes a SLAT and funds it with $11.58 million in assets. Karen’s SLAT names Chad and their three children as beneficiaries and designates their friend Gus as a trustee. Chad creates and funds a similar trust with $11.58 million that names Karen, their three children, and his nephew as beneficiaries and designates Friendly Bank as a corporate trustee (among other differences between the trust structures). Karen and Chad pass away in the same year when the estate and gift tax exemption is only $6.58 million per person. Even though they have gifted more than the $6.58 million exemption in place at their deaths, the IRS has taken the position that it will not punish taxpayers with a clawback provision that pulls transferred assets back into the taxpayer’s taxable estate. As a result, Karen and Chad have saved $2 million each in estate taxes assuming a 40 percent estate tax rate at the time of their deaths.

 

 

Irrevocable Life Insurance Trust

 

An existing insurance policy can be transferred into an irrevocable life insurance trust (ILIT), or the trustee of the ILIT can purchase an insurance policy in the name of the trust. The donorcan make gifts to the ILIT that qualify for the annual gift tax exclusion,and the trustee will use those gifts to pay the policy premiums. Since the insurance policy is held by the ILIT, the premium payments and the full death benefit are not included in the donor’staxable estate. Furthermore, the insurance proceeds at the donor’sdeath will be exempt from income taxes.

 

When Should I Talk to an Estate Planner?

 

If any of the strategies discussed above interest you, or you feel that potential changes in legislation will negatively impact your wealth, we strongly encourage you to schedule a meeting with us at your earliest convenience and definitely before the end of the year. We can review your estate plan and recommend changes and improvements to protect you from potential future changes in legislation.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm with offices in Reston and Virginia Beach. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/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 CPS investigations and our family law practice, 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. You can also schedule a time for a free consultation with one of our attorneys online at www.melonelawpc.com/contact.

What Can I Do About a False CPS Report?

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

In contested family law matters, CPS often gets involved where there are concerns of abuse, neglect, or mistreatment of children. CPS takes reports from family members, as well as other members of the community anonymously and for any reason. Most frequently reports are made by family members, neighbors, friends, educators, and even acquaintances. Unfortunately the majority of cases turn out to be the result of misinterpretation, or, outright fraud.

When parents are going through a family law dispute, it’s difficult to know what may be occurring in the other household. Young children may make statements that lead a parent to believe some abuse may be occurring, or there may be other sources of information such as mutual friends and extended relatives. However, some parents attempt to utilize CPS in order to obtain sole custody based on false allegations of abuse or mistreatment of a child. In those situations, there are remedies available to those who have been falsely accused.

What is the Role of CPS in Family Law Cases?

CPS workers investigate complaints regarding abuse, neglect, or other mistreatment of children. Generally, caseworkers will do their best to determine whether or not a child is in any risk of harm before making a determination and report. If there is an immediate risk of harm, CPS will ask the court to intervene to place the child somewhere safe on a temporary basis. Investigations can result in allegations being determined to be “founded” or “unfounded.”  If allegations are “founded” CPS will frequently ask the parties to enact a safety plan or will take further action in the Court if necessary.

CPS reports and testimony from caseworkers may be involved in a future custody hearing, so caseworkers will take detailed notes, pictures, and will clearly state their opinion regarding their investigation in the report.

If you are being investigated by CPS, you should do your best to remain calm and polite to the caseworker. Refusal to provide information can result in action being taken against you in the future. If you have questions or concerns about the investigation, you will want to contact your attorney right away. Remember, the CPS caseworker is there to represent the interests of the child and make a report; they are not able to provide you with any legal advice or representation. You have the right to have your attorney present with you during interviews with CPS, although it is not required.

What happens if allegations are “unfounded”?

Unfortunately, most allegations are determined to be unfounded.  If your case is determined to be unfounded, you have the right to petition CPS to provide information on the individual who made the report against you. In Virginia, knowingly providing a false report of child abuse or neglect is a Class 1 Misdemeanor, meaning the accuser could face up to 12 months in jail and pay up to $2,500 in fines.  A second offense increases to a Class 6 felony if convicted. If a conviction is made for a false report, you may request to have CPS destroy their records of the investigation.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm with offices in Reston and Virginia Beach. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/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 CPS investigations and our family law practice, 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. You can also schedule a time for a free consultation with one of our attorneys online at www.melonelawpc.com/contact.

 

 

The Other Parent Won’t Let Me See My Child; What Can I Do?

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

Withholding of a child from visitation from their other parent can be a serious factor for the court to consider in any custody or visitation case. In some situations, the court will intervene by either changing custody completely, or by ordering re-unification therapy for the child and the other parent. You have different remedies available depending on the procedural status of your case and relationship with the other parent.

During a Divorce

If you and your spouse have initiated a divorce case in the Circuit Court, you can request a temporary hearing on custody and visitation, known as a pendente litehearing. Any orders made at this stage are meant to be temporary, and can be modified in the future if there are any material changes in circumstances. Ordinarily, a pendente liteorder will remain in effect until the parties go to trial and get a final determination. However, if one party refuses to comply with the pendente liteorder and withholds the child from the other parent, the court may modify its temporary order.

Decisions made during a pendente litehearing follow the same standard for custody and visitation as a full trial. The court will consider the factors of Virginia Code Section 20-124.3 in making its determination. One of the most important factors for many courts is found at subsection (6) and states the court will consider: “®he 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.” While this is only one of the factors listed, many judges weight it more heavily than other considerations such as the role each parent has played in the child’s upbringing.

During a Custody & Visitation Case

For parties that are not married, they can file for temporary custody and visitation with the Juvenile and Domestic Relations District Court. Once a custody and visitation petition has been filed, either party may request a temporary hearing while the case is pending. Again, any order made is usually in effect until the final trial. The court will follow the same standards of Virginia Code Section 20-124.3 in making a temporary determination.

Once there is a final order in the Juvenile and Domestic Relations Court, the parties each have the option to note an appeal to the Circuit Court within 10 days. In the appeal, the court will hold a new trial and follow the same standard.

After Your Case

Once you have a final decision from either the Juvenile or Circuit Court, you have the ability to enforce it against the other parent through the court as well as through law enforcement. If the other parent refuses to let you have your scheduled visitation, you can file a petition for a Show Cause, requesting the court hold the other parent in contempt for not complying with the order. In a Show Cause, the court can award sanctions, jail time, and attorney’s fees against a noncompliant party.

Once you have a court order you also have the option to request law enforcement assistance if the other parent refuses to turn over the child for your scheduled visitation. Law enforcement is able to take action based on valid court orders only and cannot intervene if there is no order in place. If the noncompliance is severe enough, the other parent can face charges for parental kidnapping as well.

If the other parent continually refuses to allow scheduled visitation or interferes in your custodial time, you have the option to request a modification of your current court order. A modification case requires a showing that a material change in circumstances has occurred since entry of the last order. A parent’s withholding of a child or alienation of a child can be enough to demonstrate such a material change.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm with offices in Reston and Virginia Beach. Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/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 our parental alienation and our family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

 

 

 

What is Family Law?

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

What is Family Law?

Our firm focuses primarily on the practice areas of family law and estate planning, but often non-lawyers will ask “what is ‘family law’ anyway?” It encompasses a broad spectrum of practice areas from divorce to custody and everything in between.

Divorce

The most frequent type of family law case is divorce, in which married people seek to divide assets and liabilities and determine custody, visitation, and support of minor children. Some cases are contested, meaning the case has to be heard and decided by a judge, while others are uncontested, meaning the parties are able to work out an agreement without court intervention.

If a case is uncontested, it can be finalized relatively quickly once the separation period requirement is met. Parties with no minor children who sign a separation agreement must be separated for 6 months prior to filing for divorce. Parties with minor children must be separated for 1 year prior to filing for divorce.

Annulments

In very rare situations, married couples may be eligible for an annulment rather than a divorce. In order to be eligible for an annulment, a spouse must be able to prove one of the following legal grounds: bigamy, incest, incompetence, fraud, impotence, underage, felony, duress, sham marriage, or pregnancy by another person within 10 months of the marriage. Because the grounds are so limited, most marriages are terminated by divorce rather than annulment.

Child Custody & Visitation

In cases where parties have children together but are not married, they can petition the court to set custody and visitation arrangements for the minor children. Custody determinations will include legal custody, meaning who can make legal decisions regarding the child, as well as physical custody, meaning where the child lives the majority of the time. Custody and visitation cases can be modified in the future when there is a material change in circumstances.

A visitation matter will determine where, when, and for how long the child spends time with each parent. In most circumstances where parents live close to one another, the child will spend time with each parent during the week. If parents live further apart, the court may order more visitation time be spent during breaks from school rather than on a weekly basis. Part of the visitation order should include how transportation will be accommodated and who is responsible for payment of any travel costs.

Child Support

Child support can be set in a divorce matter, or in a case where the parties were not married, it can be determined in the juvenile and domestic relations court as a separate matter. Even if parties have an agreement regarding child support, the court will usually apply the statutory guidelines for support.

In some cases, there is a good reason to deviate from the guideline amount of child support. If a parent is voluntarily unemployed or underemployed, for example, the court may order a higher amount of support than would be paid under the guidelines. If one parent moves far away and visitation will require air travel, the court can consider the costs of accommodating visitation into a deviation from the support guidelines.

Paternity

If a child’s parentage is in question or has not yet been determined, the court will order genetic testing to determine paternity. Opening a paternity matter enables the parties to petition for other related matters, such as custody, visitation, and child support. Once paternity is determined, both parents have an equal right to the child unless and until the court makes a custody order.

Spousal Support or Separate Maintenance

In some situations, parties may not have a ground for divorce yet, but are in need of financial support. They can petition for spousal support through the juvenile court, or make a suit for separate maintenance in the circuit court. Both of these matters can be determined without a divorce case and without making any other determination regarding division of the parties’ assets or liabilities.

Some spouses prefer to avoid filing for divorce for religious reasons. In such a situation, they can still petition and enforce a court order for support from their spouse.

Prenuptial Agreements

Parties can make agreements prior to marriage that determine the legal rights between them. These agreements can include terms for how the parties may pursue a divorce, what remedies may be sought, and limitations on financial awards. If a spouse has substantial pre-marital assets, a separate business interest, or other property, it’s advisable to have a prenuptial agreement in place. A prenuptial agreement can also modify each spouse’s right to inherit from the other and will often be drafted alongside other estate planning documents.

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.

Signing Your Will During COVID-19

Written by Rebecca Melone on . Posted in Estate Planning.

For many families, COVID-19 has brought estate planning to the top of the priority list. Unfortunately, most law offices are closed or limiting their availability due to stay-at-home orders or other state restrictions. Estate planning attorneys are still able to complete meetings by phone and can send clients documents by email or mail for signature. One of the most frequently asked questions during this time is “can I sign my will during quarantine?”

Will Requirements in Virginia

In Virginia, a holographic will is valid and enforceable. A holographic will is completely in the testator’s handwriting and signed by the testator. A typewritten will must be signed or acknowledged by the testator in the presence of two witnesses. A will does not need to be notarized in Virginia, but frequently will include a self-proving affidavit to notarize the signatures of the testator and witnesses. Including a self-proving affidavit with a will makes it easier to establish the validity of the will.

Some jurisdictions require that witnesses be “disinterested” – that they not be family members or beneficiaries under the will. In Virginia, there is no requirement that witnesses of a will be disinterested. This means that family members who are over 18 may act as witnesses to your will.

Trust Requirements in Virginia

Typically, trust agreements are signed and notarized by the grantor, but they do not require a notary in order to be valid. Rather, trust agreements only require the signature of the grantor. A certification of trust must include the signature of the trustee. For those with revocable living trusts, the grantor may also be the trustee during their life.

If the trust or certification of trust is to be recorded with land records, it will need to be notarized.

Other Estate Document Requirements

A durable power of attorney will be presumed to be genuine if signed and notarized by the principal. If the power of attorney is to be filed with land records, it must either be notarized or proved by two witnesses.

Advance medical directives must be signed before two witnesses in Virginia. While it is not required that the witnesses be disinterested, our office generally recommends using disinterested witnesses where possible. This helps prevent any claim of undue influence later.

Signing Under Quarantine

The requirement for witnesses to be “in the presence” of the testator does not have a specific distance requirement. In order to be in someone’s presence, they could be across the room or across an outdoor area from one another. So long as the witness observes the signer executing the document and sees that the signer is not under any duress or impairment, they can act as a witness.

Since witnesses do not have to be “disinterested,” family members who are under quarantine in the same household are able to act as witnesses for one another.

A trust agreement should be signed in the presence of a notary in case it needs to be filed with land records in the future. In that case, use of a mobile notary who can remain at a safe distance or even in the car can be helpful to finalize trust documents.

A durable power of attorney only needs to be signed by the principal to be effective, however, it’s highly recommended that it be notarized. Similar to the trust agreement, use of a mobile notary may be useful to ensure the power of attorney is not challenged later.

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.

 

Divorce During COVID-19

Written by Rebecca Melone on . Posted in Child Custody, Divorce, Family Law.

Divorce During COVID

For couples that were facing separation and divorce before the stay-at-home order, Executive Order 55 added complication to the separation process. In order for couples to divorce based on separation in Virginia, they must have been living separate and apart for 6 months or 1 year before filing, depending if they have minor children or not.

Separation

In Virginia, separation requires physical separation and can include time spent under the same roof as long as the parties are truly living separate and apart. It can be difficult to demonstrate separation to the court when parties are still living in the same home and acting as a family unit. Some factors that may help to show separation include separating financially, purchasing separate groceries, and living in separate areas of the home. During the current stay-at-home order, it may be difficult for couples to set strong boundaries in place to initiate or continue separation.

The Divorce Process

Many divorce cases can still move forward so long as they are completely uncontested, meaning the parties have reached an agreement regarding custody, visitation, support, asset division, debt division, and any other necessary terms from the relationship. It can be difficult for couples to unwind their shared interests in an equitable way on their own when there is so much emotion involved.

For those that cannot reach an agreement, the next option is to file a divorce case and request the court make a temporary order while their case is awaiting trial. During the current court closure, these motions will not be heard unless there is an emergency involved. A party can still file their divorce and temporary motion, but they will not be able to get a ruling from the court for several weeks once they are able to set a hearing.

This slowdown in the process can create a financial or other hardship for couples facing divorce. Deciding who is responsible for payment of joint expenses, setting temporary child or spousal support, and a temporary custody schedule is already complicated enough without adding limited court availability.

Alternative Dispute Resolution

For those that may be close to reaching an agreement, or that just need some guidance in the process, mediation may be an option to move their case forward. 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. Some benefits of mediation include:

  1. Creative Solutions: The courts are limited in following judicial precedence to make orders. In mediation, couples can reach more creative, flexible, agreements that would not be ordered by a court.
  2. Save Embarrassment: Any matter in the Circuit Court is public record. That means everything in the court file and everything said during a hearing could be overheard or used for other reasons in the future. For cases involving sensitive issues, parties may benefit from keeping the process private through mediation.
  3. Save Time and Cost: Parties that reach an agreement in mediation can move forward with their case once they have a signed agreement. The court will still process uncontested divorces. An uncontested divorce will be substantially less expensive than a contested case to finalize as well.

If you are facing separation and divorce during COVID-19, it may be best to seek legal counsel now to discuss your options in detail before taking any action. You want to ensure your rights are protected and your case will be successful once it can move forward.

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.

COVID-19 and Your Estate Plan

Written by Rebecca Melone on . Posted in Advance Medical Directives, Estate Planning, Probate.

As COVID-19 continues to spread throughout the United States, more Americans are facing new realities. Dealing with school closures, quarantines, and stay-at-home orders has impacted businesses and families in new ways. During times like this, more families are getting to their “to-do” lists that may have been lingering on their minds for some time. These times of uncertainty have also reminded many families of the importance of estate and financial planning.[/caption]

As the rate of infections increases, the chance of illness touching your family becomes a real possibility. Making sure everyone in your family is protected properly before anything happens is essential. This is the time to be sure your estate and financial plan are up to date and in line with your wishes, especially if you or anyone in your family is considered at “high-risk” for infection.

Essential Documents

At a minimum, everyone should have in place a basic will, advance directive, and durable power of attorney. In addition to your essential documents, you should make sure all insurance policies and other beneficiary designations are up to date. On any account where you can name a “pay-on-death” or “transfer-on-death” beneficiary, you should make sure those designations are in place and up to date. Those designations will pass automatically upon your death, outside of your will and outside of probate. This type of transfer is ideal as it avoids any potential claims from creditors against the estate and creates a smooth transfer for your loved ones.

Will

Your will can include specific gifts of personal property or other financial gifts, your funeral and burial wishes, and any guardianship preferences for minor children. The objective of any estate plan is to maximize the financial benefit for your beneficiaries while keeping the transition smooth and clear to all those involved. If your funeral and burial wishes are clear, there will be no question between your family and loved ones as to what you would have wanted.

Advance Medical Directive

Your advance medical directive allows you to choose an agent to make medical decisions on your behalf if you are temporarily or permanently incapacitated. In Virginia, your advance medical directive also includes your living will, which allows you to make decisions about life-sustaining treatments if you are ever in a terminal, unresponsive, condition. Although the decisions can be difficult to make now, it’s much easier on your family and loved ones if your wishes are clear and enforceable should the unthinkable ever happen.

Durable Power of Attorney

Your durable power of attorney allows you to choose an agent to make financial decisions and engage in financial transactions on your behalf if you are unable to manage your own affairs. You can choose to have this authority only go into effect if you are incapacitated, which is referred to as a “springing” power of attorney. Otherwise, your power of attorney gives authority to act immediately as well as during incapacity.

Creative Planning

In addition to the above documents, there are other ways to control distributions to your beneficiaries in a way that will maximize the financial benefits of your estate. For many families, one of their largest assets is their real estate, which ordinarily has to pass through probate after the owner’s death. Another option available in Virginia is the Transfer on Death Deed. This type of transfer does not create any interest in the property for the beneficiary during the owner’s life and may be revoked at any time. It allows the real estate to pass outside of the will and outside of probate to the chosen beneficiary, just like a life insurance policy or other financial account with a pay-on-death designation.

Another option for families with young children, or irresponsible adult children, is the revocable family trust. This option allows families to put assets into a vehicle, known as a trust, and control how distributions are made after their death. Beneficiaries may have certain expenses paid on their behalf and may receive distributions at certain ages or other intervals.

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.

 

Custody Exchanges During COVID-19

Written by Rebecca Melone on . Posted in Child Custody, Family Law.

In Executive Order 55, Governor Northam issued a stay-at-home order for all non-essential purposes and limited social gatherings to less than 10 people in Virginia. The order specifically addressed child custody and visitation, stating that individuals may “leave their residence for purposes of … traveling required by court order or to facilitate custody, visitation, or child care.”

Regular Visitation

If you have an order in place for a visitation schedule, you should continue to abide by it to the extent possible. When arranging for custodial exchanges, all recommended CDC guidelines should be followed. For those that ordinarily exchange their children in a public location, parents should use caution and select a location that will minimize contact with the public. Both parents should use every precaution to make sure the child’s belongings have been and remain properly sanitized before entering the house.

If you do not yet have a custody order in place, you can still travel in order to facilitate visitation time for the other parent. You should continue to follow the status quo for the child, as their schedule has likely already been interrupted.

When Can Visitation be Denied?

In certain situations, such as those involving long-distance travel or high-risk employment, it may be reasonable to modify or suspend visitation. Remember to communicate clearly with the other parent prior to making any change to the custodial schedule. It’s best to document your communication or attempt at communication in a written form such as text or email. Remember that any violation of the court’s current order can be a basis for contempt later on. With that in mind, you should take whatever action is necessary to ensure the child is best protected from any risk of harm.

If visitation requires air travel or lengthy car travel, it may not be reasonable to subject the child or the parents to all of the potential exposures along the way. Parents can work to find alternative travel dates in the summer or fall to make up for lost time. If parents can agree to a change, they should document it in writing.

If a parent is employed in a high-risk industry, they need to take every precaution to ensure they are not exposing the child to any unnecessary risk. Those in the healthcare field have been recommended to leave their shoes outside, shower, and wash all clothing and everything else at the end of their shift before having any contact with family members or any household items.

If a child is at high-risk of infection or has significant underlying health problems, it may be necessary to suspend in-person visitation with a parent in a high-risk industry. You should be sure to provide phone, Skype, or Facetime availability for the child with the other parent. If the other parent does not agree to a suspension of visitation, it may be best to file a request for an emergency modification with the court.

Enforcement Issues

For those attempting to enforce their current orders or make changes to their visitation schedule, their options will be limited for a few weeks. On March 27, 2020, the Virginia Supreme Court extended its declaration of a judicial emergency and ordered the closure of its courts through April 26th. It’s likely that this deadline will be extended further into May. Some local courts have already announced closures extending into early May.

As a result, only those custody matters that qualify as an emergency can be brought into court for a hearing. Emergency matters are those where the child’s health, safety, or welfare is at risk of immediate harm or threat of immediate harm. The child must be present in the Commonwealth of Virginia in order for the court to take jurisdiction. Emergency jurisdiction is only temporary until the child’s home state can act. In an emergency case the court can order custody be granted to any interested party, including extended family members, on a temporary basis to ensure the child’s safety.

Melone Law, P.C.

While this is an extremely uncertain time it’s important to continue following any orders or agreements you have in place. Eventually, the court will resume its normal schedule and you don’t want to face contempt for violating any court orders. If you have specific questions about your case, contact one of the attorneys at Melone Law PC in our Northern Virginia office at 703-995-9900 or Virginia Beach at 757-296-0580.

 

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