Virginia Family Legal Questions

This is a very good question because there are actually two facets to being separated, one being the physical separation and the other mental aspect being that at least one party's intent is that the separation is permanent.  It may seem that couples counseling would indicate that the parties do not intend the separation to be permanent and are in fact, to the contrary, trying to reconcile.  But I do not believe that the intent for the separation to be permanent means that the parties cannot have any doubts.  I think you can explore all of your options, including the possibility of working things out, while still presently intending the separation to be permanent.  This may sound like some fancy mental gymnastics, but in reality, when it comes time to verify your separation under oath, how is anyone going to get inside your head to dispute what your true intent was.  And if your spouse wants the divorce, too, then why would anyone want to dispute your intent. However, in the event that your spouse may want to dispute that it was your intent for the separation to be permanent, you would want to be careful of what you actually say that would reveal that it is NOT your intent to remain separate.  If your spouse tries to bring in statements you make during counseling sessions, this would raise some interesting legal questions about both doctor-patient privilege and spousal privilege, that may or may not prevent them from using this against you.   The bottom line is that I think as a matter of public policy, it would have a chilling effect on people working on possibly salvaging their marriages if they are afraid to participate in couple's counseling for fear of interrupting their separation period.  I think it would be against the commonwealth's interest in preserving families.  I have never heard of this being used against anyone and I can't imagine a judge denying a divorce on this basis.   This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read Answer

Any parent can petition to modify the custody order if there has been a material change in circumstances.  Then you would have to demonstrate to the court that it is in the child's best interest for there to be a change in custody. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

Ms. Dempsey, I need more information to give you a complete answer. What I would need to know is whether you signed a Marital Agreement in which your husband agreed to pay you $850.00 per month for 18 months or whether a Court granted you $850.00 per month for 18 months.  If you signed a Marital Agreement, sometimes called a Property Settlement Agreement, you may not be able to get more support. The Marital Agreement would have to state that your support is modifiable.  If a judge granted you support, you may be able to ask the Judge to grant you support again.  You have a change of circumstances from when you began to receive support. If your support is modifiable, you will be able to either negotiate for more support or ask the Judge for more support.  ... Read Answer

I actually had this very issue come up in a case I handled recently - where the child started college at age 17.  I was arguing the other side - the position your husband is taking - because I said the child was no longer living at home, so why should the mother continue to get support for a child who is not in her custody.  But I LOST.  I was shocked, but the judge agreed with your position.  However, that was just one judge in one court and I think this is a pretty open-ended issue.  There is no law about it that I am aware of, other than the one you cite to.  But that statute does not address this issue of children who are not actually living at home.  Ordinarily when a child no longer lives at home, support for that party ends.  To add insult to injury in my case, the father was also already paying a portion of room and board at the college, so he was basically being required to support TWO homes for the child. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

This problem is addressed in a special set of statutes called the Uniform Child Custody and Jurisdiction and Enforcement Act. If you still live in the same City or County that issued the current Court Order, you need to file a show cause in the City or County where there is an Order. In the show cause, you let the Court that issued the Order know that the parent has violated the existing court order. You ask for the return of the children to you. You ask for the Court where there is an Order to be in contact with  the Court where the other parent filed. Only one court can have jurisdiction over custody and visitation. The Judges get in contact with each other to discuss who will handle the request for a change in custody.    ... Read Answer

You have a number of issues going on in your life!  Yes, it is legal for you to move with your son to the home of the father of your child. What you don't say is whether the father of your child can support you and your child. Will you be moving to a stable home?  Will you have access to transportation for you and the baby to go to doctor's appointments?  If you do not have a plan to show stability for yourself and your child, you risk your mother filing a Petition to the Court for custody of the baby.  Make a plan for stability for yourself and your child.  Include in your plan how you will support yourself and the child if the father of the child and you do not get along.  What is legal and what is a good idea for stability for yourself and your child are two different paths.  ... Read Answer

Yes, it is legal for one party to close a joint checking account without telling the other. One party closing a checking account is disruptive to the other party; but not illegal.  Closing a joint account is often a signal that a marriage is in trouble. Start a conversation with your spouse about the marriage or get a consultation with an attorney right away.    ... Read Answer

I am going to suggest that you file an affidavit stating that you have no address for the father. Your affidavit would request that you be allowed to post a notice at the court house that the Name Change Application is filed and a hearing will take place at a stated date. You will have to calculate the waiting time for the posting of the notice until the date of the hearing. An attorney should be able to help you with calculating the time and preparing the Affidavit, Notice, and Application for Name Change.  The attorney can also help with the Order for Name Change. There are forms online for the Application for Name Change. There are not forms online for the Order. ... Read Answer

This would certainly constitute a material change in circumstances which could allow you to revisit the spousal support issue.  But it will depend on what court order says, some support is modifiable and some is not.  If the support was agreed upon in a property settlement agreement, sometimes it is for a set amount for a set duration and it may be impossible to alter that, unless the agreement itself says it is modifiable.  If the support was awarded by the court, whether for a set duration or indefinitely, then the court can revisit its own ruling and recalculate the amount of support, if the judge determines that it would be the fairest thing to do. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.    ... Read Answer

What you describe does not sound like cruelty that would constitute grounds for divorce, nor does it rise to the level of abuse that would warrant a protective order.  However, what you describe sounds more like abandonment or desertion, which IS a grounds for divorce in Virginia.  If he is basically living separate in the same house and is failing to support you and your child, you can file for divorce and possibly child support (although that usually requires living in separate residences).  Once a divorce is filed, you may be able to obtain exclusive use and possession of the home, which would force him out, while he is ordered to pay child support and spousal support, depending on his income. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read Answer

My interpretation would be that Father has the child from Friday at 4:00 p.m  until Tuesday at 4:00 p.m.  I imagine that the Mother has the same time designated to her for Mother's Day. She would have the child from Friday until Sunday at 5:00 p.m. Then she would deliver the child to the Father for his parenting time until Tuesday at 4:00 p.m. ... Read Answer

If your mother is capable of signing a document naming you as her Medical Agent, you would have the ability to speak with your mother's doctors to help make decisions for your mother. Without such a document, the doctors look to your step father for help with decisions. Also, if your mother is capable, you should think about asking your mother to sign a Power of Attorney that allows you to help with financial decisions.    ... Read Answer

Your ex has the absolute right to choose his or her own attorney, as do you.  Since that attorney works for your ex and not you, you do not have any control over the quality or efficiency of the work.  However, if their attorney's incompetence is causing you to incur additional legal fees, your attorney can absolutely ask for attorney fees to be compensated for them dragging things out.  This is a pretty routine request, but will up to the judge whether or not to order it.  And depending on which court you are in, it may also depend on your ex's ability to pay those fees.  If you are in a better position to pay, you may be required to pay, even if it was not your fault.  This is one of life's penalties for making a poor choice of mates.  In addition, attorney's fees are usually one of the first thing that is conceded in any settlement, so if you are able to resolve your case out of court, you probably will not be compensated for your attorney fees. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.  ... Read Answer

In some types of cases, you can provide legal notice to the other party by publication in the newspaper, if you are unable to locate them.  You must sign an affidavit stating that you have used due diligence to try to locate the other party and have been unable to locate them.  Some of the things that constitute due diligence include conducting an internet search, checking utility and DMV records, and checking with the Post Office for a change of address.  Some people choose to spend a small fee to have a private investigator do their due diligence for them.  You will need to provide the party's last known address to the court.  Once the legal notice runs in the newspaper once a week for four weeks, you should be able to proceed with your case.  It may make sense to hire a lawyer to take care for this for you, since we are accustomed to the procedures of legal notice. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

The short answer is No.  For tax debt or any other debt, anything accrued during the marriage, is their separate debt, just like any property or assets as their separate assets.  Even during the marriage, unless you sign or co-sign on something with your spouse, you cannot be held liable to a third-party for your spouse's debts.  In the event of a divorce, a judge can divide up marital debt and assign each spouse a portion of any debt incurred during the marriage, but this only makes you liable to each other; it does not create liability to a third-party bank or debt collector.   This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

I doubt your Mother has any recourse.  She would have to be able to show evidence of an exchange of valuable consideration, and a meeting of the minds for the supposed loan.  But the statute of frauds, which requires that certain contracts such as for large sums of money be evidenced by a writing, will likely prevent her from doing so, unless she has something in writing from her you.  I think it is an empty threat. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

If the child is currently living with his aunt and not your ex-spouse then you are already not abiding by the court order.  There has clearly been a change in circumstances from what the divorce anticipated.  This would allow you to go back to court and for modification of the custody provisions.  Your son's preferences are one of many factors the court is required to consider, but it is just one factor.  Ultimately, the court must determine what is in your child's best interests, not necessarily what he wants. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

It sounds like it should be easy enough to change your child's name, but since the father's parental rights have not been terminated, he still has the right to object to the name change.  If you can get his consent, then it will be a simple matter, but otherwise it will require a court hearing to prove that it is in the child's best interest. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

It only takes one parent to consent to things for their child.  Only certain types of contracts are required to be evidenced by something in writing and I do not believe this falls into this category.  It sounds to me like you had a valid oral contract with your sister.  I do not believe your husband has any legal recourse against her. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

If you do not already have a court order for visitation, you need to file for one right away.  You can contact the Juvenile & Domestic Relations District Court for the county in which the children live and make arrangements to file a Petition for Visitation.  If you already have a visitation order, then it sounds like he is surely in violation, if he is denying  you contact with the children.  In that case, you would need to go back to the court that issued the order and file a Rule To Show Cause to ask that he be held in contempt of court. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

According to Virginia Code 20-49, you must obtain the consent of the "father or mother," so this would indicate that you only need one or the other, but not both.  But why would you want to get married so young?  Please don't do it. This answer is given in accordance with the laws of Virginia and may not be applicable in any other state.  It should not be construed as legal advice, as that would require a more thorough analysis of all of the facts involved in a specific case.  If you need further information or assistance, please feel free to contact my office for a consultation. Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.... Read Answer

Cristin, Virginia would view his second marriage as void (e.g. that it never took place).  He may have committed the criminal act of bigamy.  You may want to check with an attorney in North Dakota about what steps, if any, you need to take to address your issue there.  ... Read Answer

If you haven't already done so, you need to file a modification of child support immediately.  The court cannot reach back before your date of filing and wipe out the child support arrears.  Your child should be receiving disability based on your disability.  You can ask the court to count that child's disability payment to count toward your spousal support amount and any overage paid by the child's disability check can be credited to the arrears. ... Read Answer

One answers a Complaint for Divorce by either writing "Defendant admits" or "Defendant denies" the allegations contained in each numbered paragraph.  The top of the document, or the "style" of the case should look like her pleading.  The title should be "Answer to Complaint."  You must sign the document.  Do keep in mind that if you file an answer, then you are submitting yourself to the jurisdiction of South Carolina.  You should seek a consult with an attorney.  Is South Carolina the proper venue for the divorce.  Did you and your spouse live together as husband and wife in South Carolina?  Has she lived there for six months continuously?  You say that there are no assets or money issues, but is she seeking spousal support/alimony?  It would serve you to seek a consult with an attorney.... Read Answer