Monday, April 28, 2014

Going through divorce: What about my pets?

Pets are like family for many of us and can be a very sensitive subject during the divorce.  While we may treat our pets like children, the courts will not.  The courts look at pets as property to be distributed in the same way as the home, a 401(k) or your boat.  This means, if you have to fight in court over this, you will need to think of your pet as property in order for you to have coherent arguments for why the court should award you the pet.

However, as with everything else in a divorce, you and your spouse can agree to whatever arrangements you would like.  You can agree that you each get one of the dogs.  You can agree that you move the dogs back and forth from week to week or month to month.  Or maybe you agree that one of you will keep the pets, but will allow the other person to have certain amounts of time with the pets.  You can agree on who will pay for vet bills, dog food and dog toys.  If you can agree, you can make it happen.  For many people, because of the sensitive nature of pets, it is better for them to come to an agreement that makes everyone at least somewhat happy, rather than allow the court to award the pet as property to one spouse or the other.

If you are thinking about divorcing or currently going through a divorce and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Friday, April 25, 2014

Thinking about Divorce: Should I leave?

This is a question many people face between the time that they've decided they want a divorce and the time they visit an attorney: Should I leave the home?  You may face this question for a multitude of reasons: your spouse refuses to leave, you need your space, you want a fresh start, etc.  You should be aware, however, that leaving the marital home may have consequences to you.

Leaving the marital home may decrease the chances that the court award you custody of the children.  In many cases (although, remember, child custody takes many factors into account), the parent remaining in the marital home may be awarded custody.  This is because courts like to see stability for the children and remaining in the home may be able to increase that stability.  There may be additional monetary consequences when it comes down to distributing assets, depending on the specifics of your case. 

If you are thinking about divorcing, you should contact an attorney as soon as possible to determine the best avenue for you to move forward.  If you would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Wednesday, April 23, 2014

Common Divorce Terms Defined

Divorce can be a complicated process, which is only made more complex by the multitude of legal terms we use during that process.  Thought it would be impossible to define all possible terms you could run into during a divorce, here's a list of some common terms and brief definitions: 

"Equitable Distribution": The scheme for dividing property during a divorce in Virginia.  It includes a list of factors that the judge takes into account and may not result in a 50/50 split of assets and liabilities.  Those factors include (from Virginia Code Ann. Sec. 20-107.3) :
1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
3. The duration of the marriage;
4. The ages and physical and mental condition of the parties;
5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;
6. How and when specific items of such marital property were acquired;
7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
8. The liquid or nonliquid character of all marital property;
9. The tax consequences to each party;
10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

"Custodial Parent" (from Virginia Code Ann. Sec. 63.2-1900): the natural of adoptive parent with whom the child resides.

"Guardian ad litem": An attorney appointed to represent the best interests of the children in the pending divorce or custody case.

"Mediation": A process by which the parties, using a neutral third party, can attempt to reach an agreement on the terms of their divorce.

"Child support": Money paid by one parent to the other for the benefit of the children.  This is determined by child support guidelines, which can be found here.

"Spousal Support": Money paid by one spouse to the other for the support and maintenance of that spouse during the pendency of and/or after the divorce is finalized.  (Read more on spousal support here).

"Arrearages":  This term refers to past due monies (typically in the form of child support or spousal support). 

"Complaint": The court document that initiates a divorce proceeding.

"Ore Tenus": Oral testimony heard in court for the purposes of supporting the allegations in the Complaint for divorce.

"Depositions": For purposes of a divorce, these are questions asked, under oath, outside of a courtroom, in support of allegations in the Complaint for divorce.

"Legal Custody": Legal custody refers to the major decision making responsibilities.  Legal custody can either be joint, meaning both parties have equal say in how to raise the child, or sole, meaning only one parent has a say in how the child is raised.

"Physical Custody": Physical custody refers to who the child actually resides with on a day-to-day basis.  This arrangement can be a wide variety or circumstances depending on the case.

"Visitation":  This term refers to the time the child spends with the parent with whom he/she does not reside.

"Pendente Lite": During a divorce, the court can award things temporarily, whether it be possession of the home, child support, spousal support, child custody, etc. These things are awarded during the pendency of the divorce and will be revisited at the conclusion of the divorce proceedings. 

"Marital Assets": Any and all property or liability owned by the married couple which needs to be divided during the divorce proceedings. 

"Final Decree of Divorce":  This court filing finalizes the divorce and is signed by the judge at the conclusion of all divorce hearings. 

If you are thinking about divorcing or currently going through a divorce and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, April 21, 2014

What happens during a divorce?

Divorce.  What exactly is it?  We know that it is the formal separation of a married couple.  But what else? 

Divorce can be simply (or as simple as it can get) that: the formal separation of a married couple.  Divorce can also be many more things as well. 

Divorce can be the division of marital assets.  This can include the home, cars, personal property, 401(k)s, stocks, retirement income, the pets, etc.  Any property owned by both of the parties during the marriage (even if it was acquired before the marriage in some cases) can be distributed through the divorce. 

Divorce can be planning for the future: calculating child support and spousal support, separating future retirement income that has not yet been distributed, etc. 

Divorce can be determining custody and visitation of the children.  Who makes the decisions?  Who do the children live with?  When do the children see the other parent?  What are the expectations of each parent?  All of these questions can be answered through the divorce. 

Finally, divorce does not have to be limited to the legal realm.  For you, divorce may include, counseling or financial planning.  It may include searching for a new home or selling your old home.  Your divorce attorney should be able to, at the very least, point you in the right direction for accomplishing all of your goals in a divorce, not simply the legal separation and ending of the marriage. 

If you are going through a divorce or contemplating a divorce and would like a consultation, we can be reached at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, April 14, 2014

Child Custody: The Basics

Child custody cases (including divorces) are very complex.  Because of that, I can't explain all of the details of a child custody case in one article but I can provide you some of the basics.

Custody cases typically begin one of two ways: 1) as part of a divorce or 2) with a petition for custody to be determined.  If it is part of a divorce, it can either be heard in the Juvenile and Domestic Relations Court OR the Circuit Court.  If it is a petition for custody to be determined, the case will be heard in the Juvenile Domestic Relations Court.  The main difference is that if the case is heard in the Juvenile and Domestic Relations Court, your case can then be appealed to the Circuit Court for a new hearing and ruling.  See more on appeals here.

If you begin in the Juvenile and Domestic Relations Court, there will be a preliminary date set at which time both parties, you and your child's other parent, will appear in court to determine the issues and set the case for trial.  At this point, the judge may appoint a guardian ad litem ("GAL") as well (see more about the role of the GAL here).

If a guardian ad litem is appointed, the GAL will do an investigation over the coming months between your preliminary date and the trial date.  During this time, the GAL will interview both parents and meet with the child.  He/she may or may not interview extended family, doctors, teachers, etc. and may do announced or unannounced home visits to each parent's home.  The GAL will gain as much information as they deem necessary to determine what they will recommend to the judge as being in the best interests of the child.

At the trial date, the person who filed the petition for custody determination (or in Circuit Court the person who filed for the divorce) will first put on evidence.  For the evidence the judges typically consider when making their determination, see here.  Next, the other parent will put on evidence in support of his/her position.  Finally, the guardian ad litem may put on evidence and make a recommendation to the judge on how he/she should rule.  That recommendation is just that, a recommendation.  It is not the judge's ruling and the judge is under no obligation to follow the GAL's recommendation.  Finally, the judge will make the custody determination and issue an order spelling out the terms of the custody.

At that point, as noted above, you may be able to appeal your custody case to the next highest court.  While these are the basics to a custody case, the details can be very complex.  Typically, the sooner you retain an attorney in the process, the better off you will be. 

If you are going through a custody or divorce case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Wednesday, April 9, 2014

Attorney-Client Relationship: How does it work?

For most people, when they decide they need to meet with an attorney, there are a million thoughts going through their head: How do I pick the right attorney? What do I need to bring with me?  What should I tell the attorney?  How much is it going to cost?  How long is this process going to last?

One thought that does not typically go through the mind is: What exactly is the relationship between an attorney and me?  This, however, is an important question to ask yourself and to understand.  This is the groundwork for the rest of your questions, some of which I listed above.

So, how does the attorney-client relationship work?

In general, you, the client, are the boss.  You make the decisions (for the most part) and you can choose to fire your attorney at any time.  You decide whether you want to testify, whether you want to bring a lawsuit, whether you want to make or accept a settlement offer, etc.  There are, however, some decisions that are left up to the attorney.  In general, these decisions relate to trial strategy and the right to decline unethical action even if the client requests it.  Aside from those limited decisions, you get to control your case.  Remember, the issue you bring to an attorney is YOUR issue and YOU have to live with the consequences, not the attorney.

That being said, your attorney is there to advise you on how to make all of those decisions.  For example, you attorney may say, "I think their settlement offer is fair and the risks outweigh the reward of going to trial so I would advise you to accept that offer."  However, as I said above, if you don't want to accept that offer, you can say no.  It is your decision.  Similarly, your attorney is there to advise you about your claims.  Typically, a client walks into an attorney's office with an idea of what type of claims they want to bring against someone else, whether it be a discrimination claim or an adultery based divorce claim.  After providing the attorney with the facts, your attorney is there to evaluate your claims and advise you on how to move forward.  Again, it is YOUR decision.  If your attorney says you have a claim for adultery based divorce but you just want a no-fault divorce, you can make that decision.  The one caveat to this is that an attorney cannot ethically bring a claim if there is no basis in law or fact for that claim and therefore, if that is the case, the attorney has the decision making power to decline pursuing that claim.  Again, however, you are the boss and you are always free to fire your attorney, obtain the advise of another attorney, etc.

So why is this important to know?  This gives you a basis for how the entire proceedings will play out.  It gives you an idea of what your role is and what the attorney's role is in the process.  It is important to have this conversation with any attorney you are considering hiring.  It will give you a clear idea of how that attorney intends on handling your case, what is expected of you and the amount of time and effort that the case may take.

If you are looking to hire an attorney and would like to discuss how we would handle your case, please contact us at (804) 447-0146 of clbaudean@baudeanlaw.com.



Friday, April 4, 2014

Estate Planning: What is it?

Estate Planning.  It's listed on many attorney's website as a practice area; but do you actually know what it is?

Let's start off general.  Estate Planning is planning for your future and for your loved ones after your death.  Now to be a little more specific, estate Planning can involve:

1. Last Will and Testament.
This is a document that sets out how you want all property that you own at the time of your death to be distributed.  Do you want it to go to your brother?  Your children?  Nieces and nephews?  Best friend?  You explicitly tell the court how you want it to be distributed in this document.  You can also set out who you want to take care of your minor children, how you want to be buried and have your funeral carried out and other important items.  For more information on this, read this post.

2. Power of Attorney
This is a document that grants another person the authority to act on your behalf.  Specifically, this deals with financial matters. You can grant that person the authority to act on your behalf with banking, stocks, legal documents, etc.  You can grant this authority now or you can grant those powers upon your incapacitation.  This document can also be revoked, modified or renewed as long as you have the mental capacity to do so.  For more information on this, read this post.

3. Advanced Medical Directive
This document sets out what medical actions you want to be taken on your behalf should you become incapacitated, suffer trauma, or be unable to articulate those wishes for any other reason.  You can set out whether you want life-resuscitating action taken, whether you want a ventilator, and/or who you want to make those decisions on your behalf.  For more information on this, read this post.

4. Trusts
There are multiple types of trusts; some are revocable, others are not.  A trust is a probate-avoidance tool used in some estate plans.  It can be established now and endure through your death.  This is typically used when the parties do not want to have to go through the probate process, which can be expensive and time consuming.  Trusts hold the property of one person (trustor), for the benefit of another person (beneficiary) and is handled by another person (trustee).  The trustor and trustee can be the same person in some instances.  For example, if you want to hold property for the benefit of yourself and the upon your death, for the benefit of your children, then you are the trustor.  You and your children are the beneficiaries.  You may choose to be the trustee as well so that you are in control of your property so long as you are alive and then appoint a trustee to control the trust upon your death.  Trusts are a complex, but useful tool in some estate plans.

5. Other tools
A thorough estate plan should also look at how your property is titled and whether or not you have life insurance in place. among other things.  In many cases, you can title your property so that, upon your death, it automatically transfers to someone else without having to go through a trust or the probate process.  Life insurance can also provide some support to your family after your death as well as help pay for the funeral and burial.

The above tools are used in a full estate planning session.  However, most attorneys who practice estate planning are also willing and able to help you with simpler tasks, such as drafting a simple will.  While it is not a fun topic to discuss, it is important to think about these matters, discuss them with your close family and an attorney now so that life will be a little bit easier in the future.

If you would like more information or a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.