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.

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. 

 

Do I have to pay spousal support?

Spousal support can be a major aspect of divorce cases in Virginia. The court may order temporary support while the case is pending and may order time-limited or even permanent spousal support at the end of the case.  Spousal support, also known as alimony or maintenance in other states, is not to be confused with child support or equitable distribution (the division of assets).  The amount and length of time one may pay or collect spousal support depends on the circumstances surrounding each marriage and divorce. A couple may decide to enter a spousal support agreement on their own or have an order dictated by the court.  In either case, the advice of an experienced and knowledgeable family law attorney will be to your advantage.

How is spousal support determined?

Unlike child support, the Commonwealth of Virginia does not have a statewide formula for determining either the amount or duration of spousal support.  The basic consideration for determining who pays, how much, and the duration of support is based on the recipient spouse’s financial need balanced against the other’s ability to pay.  Fairfax County does use guidelines, similar to child support guidelines, to determine temporary or “pendente lite” support: the support paid by one spouse to the other during the period after filing until the divorce is final.  Nevertheless, depending on the judge and the jurisdiction, circuit courts in Virginia may look to these local guidelines for assistance in determining a proper spousal support amount and many judges will use these guidelines as a starting point in evaluating spousal support.

Factors affecting spousal support in Virginia

Courts consider a number of factors in order to grant a fair spousal support agreement, including those listed in Virginia Code 20-107.1. While not an exhaustive list, here are some of the most common factors reviewed by family court judges:
  • Length of marriage
  • Standard of living
  • Income of both spouses including property and assets
  • Minor children and their ages
  • Age and health (physical and mental) of both spouses
  • Earning potential of each spouse
  • Current living expenses
  • Financial support and contributions each spouse made to the other’s education and career during the marriage and to the well-being of the marriage
  • Potential to receive inheritance or other assets
  • Retirement benefits
  • Financial obligations of each spouse
  • Time needed for dependent spouse to seek employment or earn the qualifications needed to obtain gainful employment
  • Tax consequences to each party

Types of spousal support in Virginia

Temporary spousal support:  This type of support is also referred to as pendente lite.  Temporary support is usually requested and granted during the pendency of the divorce case. Its purpose is to help the recipient spouse maintain their standard of living during the divorce process.  Keep in mind that the amount of temporary support awarded has no bearing on the type or amount of spousal support granted or its duration in the final divorce decree. Permanent spousal support:  Permanent support is what most of us think of when we think of spousal support or alimony. However, it has become less and less common. Permanent spousal support is indefinite in that the payments will continue until one spouse dies or the dependent spouse remarries or lives with a new partner.  Typically this type of support is granted after a long marriage when the dependent spouse is unable to work due to age or health, or has little chance of finding gainful employment. Rehabilitative spousal support:  Rehabilitative support has some similarities to permanent support but differs in that it is for a finite period of time. Its purpose is to provide for a dependent spouse until he or she is able to become self-sufficient. It accounts for the time the receiving spouse needs to gain new skills or education and find employment.  Rehabilitative spousal support is not indefinite and has a set date for termination. The court looks at the dependent spouse’s specific case. For example, an agreement may be made for the dependent spouse to receive support until the children enter high school or for a period of months or years to allow for time to obtain education and find employment. Lump sum spousal support:  Support is often paid out over a period of time in monthly installments. However, paying the agreed amount in a lump-sum may be an option in some cases. It may be agreed upon as a settlement instead of dividing property or assets.  There are some benefits of taking a lump sum. When accounting for inflation, the money you receive all at once may have a greater value than the money you receive in future installments. It also gives you the opportunity to invest or start receiving interest on the money awarded. You won’t have to worry about missed payments or enforcing court orders if your spouse refuses to pay at a later date. However, you should discuss potential tax implications with your attorney, accountant, and/or financial advisor.

When Can Alimony be Barred in Virginia?

Adultery by one spouse will usually, although not always, bar the adulterer spouse from receiving spousal support.  However, there are many caveats to this, and proving adultery can often be very difficult. If you believe this may apply to your situation, you should consult an experienced Virginia family law attorney.

Contact Melone Law P.C.

Finally, remember that an experienced family law attorney will be able to help you reach the most favorable outcome, determine the type of spousal support best suited for your situation, and help you obtain it. Our attorneys can help protect your interests and well-being. To discuss your case and how to proceed, contact Melone Law today at 703.955.9900.

Should You Make A Trust For Your Kids?

    When it comes to estate planning, most families have the same objectives: to provide income for their children or other descendants. Parents want their children to continue having the sa me comfortable lifestyle and the freedom to pursue their education and career objectives. But what happens if your children are still under 18? What happens if they are 18? For children under 18 the court will appoint a guardian to act as the children’s custodian. That individual may also have the authority to manage their inheritance. A guardian will have to post a bond with the court and make reports to the commissioner of accounts office. For children over 18 they will simply receive their inheritance outright when the estate is settled. Now, many children may understand and recognize that the funds are meant to be used for their health, education, and welfare, but if they need a car, why not a Range Rover? If they are going to college, why not an international program or expensive private school? How can you be sure that your assets are utilized in the best way possible to promote your children’s success after you are gone? The answer, most often, is through a trust. In establishing a trust for the benefit of your children you have several different options. Some of the most popular choices are to either set up a revocable family trust during your life that continues after your passing, or, a testamentary trust which is a directive in your will requiring a trust to be established after you pass. Both have their own benefits and drawbacks. The Revocable Family Trust This option allows you to receive the benefits of the trust during your lifetime. Many individuals manage their own revocable trusts, which keeps the management cost minimal. Families can transfer assets such as real estate, cash, investment accounts, and even retirement accounts into a trust during their lifetime. One major benefit of this type of trust is the ability to establish exactly what you want during your life and an easy transition after your passing. If management of the trust becomes complicated and overly time-consuming, you always have the option to appoint an individual or corporate trustee. The trustee will manage the assets in the trust and follow the trust’s directives on making distributions. Some financial firms offer co-trustee services which provide a cost savings compared to other trustee services. The Testamentary Trust A few simple provisions added to your traditional will can direct that any distributions to parties under a certain age must be placed into a trust. It can direct how the trust is organized and name an individual or corporate trustee to manage the trust. In order for the testamentary trustee to be appointed, they will have to qualify with the court the same way an executor or personal representative qualifies. A testamentary trust may provide for distributions of income over a certain period of time, or it may provide for one payout once the beneficiary reaches a certain age. Under either option the trust or the will may waive any requirement of a trustee to post bond and file reports with the commissioner’s office. You must balance any concerns over mismanagement of funds with convenience and ease of management for your guardian or trustee. Revocable trusts and testamentary trusts can both help you achieve your estate planning goals, and provide income and support to your children after you are gone. The attorneys at Melone Law, P.C. can help you evaluate your options and achieve your estate planning goals. Contact us for a free estate plan evaluation.

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