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.
Showing posts with label guardian ad litem. Show all posts
Showing posts with label guardian ad litem. Show all posts
Wednesday, April 23, 2014
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.
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.
Monday, February 10, 2014
Custody: Do you understand the role of the guardian ad litem (GAL)?
Custody cases can be complex, emotional and just plain difficult for a lot of people. Aside from the emotions and practical challenges of dealing with a court case, you have to figure out who is who and what their role is.
Guardians ad litem are appointed in a lot of custody cases, especially those where the mom and dad are unrepresented and do not have an attorney. If you have an attorney, your attorney should explain the role of the guardian ad litem. If you do not have an attorney, the guardian ad litem should explain his/her role. However, things that should be done are not always done and sometimes there is just a disconnect between one person's explanation and the other person's understanding.
Here's a brief overview of the role of the guardian ad litem, or GAL, in custody cases.
The GAL represents the child in the case. This is a very similar relationship that you, as an adult, would have with an attorney. The GAL's role, however, is slightly different, in that sense. When you are represented by an attorney, with some limitations, that attorney MUST do what you want him to do. He MUST advocate for what you want. A GAL, on the other hand, does an independent analysis of what is in the best interests of the child. The GAL MUST advocate for the best interests of the child, even if the child says he wants something different. Similarly, when you are represented by an attorney, again with few limitations, any communication between you and that attorney MUST remain confidential. A GAL, however, may disclose those confidential communications if he finds it is in the best interests of the child. For example, if the child says, "don't tell anyone but my mom/dad/brother hurts me", it is likely in the best interests of the child that the GAL alert appropriate parties and obtain help for the child.
Another aspect of the GAL's role is to provide a recommendation to the judge on how he/she should rule. This recommendation is formed after a thorough independent investigation and review of the case. A judge can only consider the evidence before the court (which does not include things such as hearsay). The GAL, however, may consider all information obtained in his/her investigation. The Court is not required to follow the GAL's recommendation, but many times the Court puts significant weight on the GAL's recommendation.
Finally, it is the role of the GAL to explain the court proceedings to the child. The GAL should talk with the child before court and explain the roles of each party, what the court proceedings will be like, etc. This explanation will vary greatly depending on the age, maturity and education level of the child. An important duty involved in this role is to talk with the child after the conclusion of the case and explain to the child what the outcome of the case is: is he now going to be living with mom, will he see dad every weekend instead of every other weekend, etc.
This is a brief overview of the role of the GAL. The specifics of how a GAL carries out his responsibilities and duties depends, in large part, on the specific circumstances of the case. If you are involved in a custody case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Guardians ad litem are appointed in a lot of custody cases, especially those where the mom and dad are unrepresented and do not have an attorney. If you have an attorney, your attorney should explain the role of the guardian ad litem. If you do not have an attorney, the guardian ad litem should explain his/her role. However, things that should be done are not always done and sometimes there is just a disconnect between one person's explanation and the other person's understanding.
Here's a brief overview of the role of the guardian ad litem, or GAL, in custody cases.
The GAL represents the child in the case. This is a very similar relationship that you, as an adult, would have with an attorney. The GAL's role, however, is slightly different, in that sense. When you are represented by an attorney, with some limitations, that attorney MUST do what you want him to do. He MUST advocate for what you want. A GAL, on the other hand, does an independent analysis of what is in the best interests of the child. The GAL MUST advocate for the best interests of the child, even if the child says he wants something different. Similarly, when you are represented by an attorney, again with few limitations, any communication between you and that attorney MUST remain confidential. A GAL, however, may disclose those confidential communications if he finds it is in the best interests of the child. For example, if the child says, "don't tell anyone but my mom/dad/brother hurts me", it is likely in the best interests of the child that the GAL alert appropriate parties and obtain help for the child.
Another aspect of the GAL's role is to provide a recommendation to the judge on how he/she should rule. This recommendation is formed after a thorough independent investigation and review of the case. A judge can only consider the evidence before the court (which does not include things such as hearsay). The GAL, however, may consider all information obtained in his/her investigation. The Court is not required to follow the GAL's recommendation, but many times the Court puts significant weight on the GAL's recommendation.
Finally, it is the role of the GAL to explain the court proceedings to the child. The GAL should talk with the child before court and explain the roles of each party, what the court proceedings will be like, etc. This explanation will vary greatly depending on the age, maturity and education level of the child. An important duty involved in this role is to talk with the child after the conclusion of the case and explain to the child what the outcome of the case is: is he now going to be living with mom, will he see dad every weekend instead of every other weekend, etc.
This is a brief overview of the role of the GAL. The specifics of how a GAL carries out his responsibilities and duties depends, in large part, on the specific circumstances of the case. If you are involved in a custody case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.
Thursday, January 10, 2013
Determining custody in Virginia
In Virginia, we have a standard called the best interests of the children for determining custody. This means when a court has custody before it, whether it's through a divorce proceeding or otherwise, the Court must look at what the best interests of the children are before they determine the custody and visitation arrangements.
Now the question is, what does "best interests of the child" mean?
Virginia has a statute setting out what factors should be considered in determining the best interests of the children. The Courts MUST consider all of the following factors: age and physical and mental condition of each child, age and physical and mental condition of each parent, the relationship between the child and the parent, the needs of the child, the role that each parent has played and will play in the upbringing of the child, the propensity of each parent to promote the relationship between the child and the other parent, the ability and desire of each parent to maintain a close relationship with the child, the preferences of the child, if reasonable and appropriate, any history of family abuse and any other factor the court deems necessary.
These factors, theoretically, should provide an overall picture of the child's life and environments with both parents. Custody is always a difficult issue; however, I hope this provides some insight into what a judge takes into account when deciding the custody arrangement for your children.
Now the question is, what does "best interests of the child" mean?
Virginia has a statute setting out what factors should be considered in determining the best interests of the children. The Courts MUST consider all of the following factors: age and physical and mental condition of each child, age and physical and mental condition of each parent, the relationship between the child and the parent, the needs of the child, the role that each parent has played and will play in the upbringing of the child, the propensity of each parent to promote the relationship between the child and the other parent, the ability and desire of each parent to maintain a close relationship with the child, the preferences of the child, if reasonable and appropriate, any history of family abuse and any other factor the court deems necessary.
These factors, theoretically, should provide an overall picture of the child's life and environments with both parents. Custody is always a difficult issue; however, I hope this provides some insight into what a judge takes into account when deciding the custody arrangement for your children.
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