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Articles from Bucci & Dix

• What Factors A Virginia Court Looks at When Deciding Child Custody
• Pendente Lite Relief
• Marital vs. Separate Property – What a court can and cannot split up during a divorce

When a divorce occurs in Virginia, the parties’ property is subject to equitable distribution.  What one spouse owned prior to the marriage can become transformed into “marital property” during the marriage and become subject to equitable distribution.  Through a prenuptial agreement, the parties can dictate terms that would keep specified property separate (such that it would not be subject to equitable distribution) or even rule out equitable distribution altogether.

Generally, prenuptial agreements are allowed when they regulate the disposition of property on death/divorce or dictate spousal support terms.  However, prenuptial agreements are generally not allowed when they seek to regulate the “incidents of marriage” (i.e. sexual relations, caretaking, and other aspects central to the marital relationship)  Prenuptial agreements will be struck down if they in any way serve to encourage divorce.

Even if parties are already married, happily or unhappily, they can enter into postnuptial agreements with terms similar to those described above.

Whether you are currently married or are considering marriage, be it your first, second, third, etc., a pre- or postnuptial agreement may be right for you.  An experienced family law attorney can also assist you in preparing a valid and enforceable agreement.

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Sadly, lots of marriages are over long before a final decree of divorce is signed.  Many soon to be ex-spouses, in order to obtain a no-fault divorce, have split their belongings and are living separate and apart.  To obtain a no fault divorce in Virginia, you have to live separate and apart for at least one year.  The policy behind this law, passed by the General Assembly, is to provide for a period of separation that is long enough to ensure that a divorce is really what people want.  Without the one year requirement, there are a lot of people out there who would probably march down to the courthouse and file for a divorce every time they were in an argument.  Next day, they might be back for a marriage (we all know at least one couple like that).  Obviously, that would not be a good situation or policy for us to have in place if the goal is to encourage people in a marriage to work through the problems that arise.

But for a lot of people, that one year is a long time.  Perhaps a new flame has been kindled, and you are eager to move on.  If you are reading this right now and find yourself nodding, you need to check yourself and slow down.  In Virginia, post separation adultery – or adultery after you’ve separated from your spouse but before the divorce is final – is still adultery.  And that means that your ex-spouse can seek a fault based divorce against you, which has consequences.

Adultery has three main fallout effects in divorce law, on top of all of the major problems it has in real life.  First, it allows the non-cheating spouse to seek a divorce immediately.  Second, the cheating spouse is barred from receiving any spousal support unless manifest injustice would result.  Third, if you are the cheating spouse and your case goes to trial, it looks bad, and it’s very public.

In the Supreme Court case of Coe v. Coe, the wife committed adultery nine months after the parties had separated.  The husband discovered it because he had hired a private detective to tail his wife (yes that is real and doesn’t only happen in movies).  The court allowed the husband to amend his complaint for divorce to include adultery, and the divorce was granted on those grounds.  The wife was granted no spousal support as a consequence, despite a thirteen year marriage.

In the long run, many ex-spouses do move on, and that’s probably healthy.  Just don’t do it too soon; you never know when there’s a private detective around.

Examples of pendente  lite relief include the following:

• An order compelling a spouse to pay any sums necessary to maintain a dependent spouse
• An order that one spouse be required to provide healthcare coverage to the other spouse
• An order requiring one spouse to provide the funds necessary for the other spouse to pursue the suit
• An order preventing either spouse from imposing any restraint on the personal liberty of the other spouse
• An order to provide for the custody and maintenance of any minor children
• An order establishing visitation rights
• An order requiring that one or both parties provide health care coverage, cash medical support, or both, for the children
• An order to provide child support pursuant to Virginia’s child support guidelines
• An order to support any child over age 18 if that child meets certain factors under Virginia law
• An order granting to one spouse the exclusive use and possession of the family residence throughout the course of litigation
• An order preserving the estate of either spouse
• An order excluding a family or household member from the family residence upon proper showing

Of course, the parties can also agree to similar terms on their own without court intervention.  However, when parties to a divorce are unable to agree, the court does have the authority to enter any of the above forms of relief to a petitioning spouse.  Pendente lite support received by a spouse has no bearing on that spouse’s right to support after dissolution, child support after dissolution, or any equitable distribution.   Pendente lite relief is also available in cases other than divorce when custody or visitation of a child is sought.

An experienced family law attorney can help you determine if any form of pendente lite relief is appropriate for your particular situation and can assist you in obtaining it.

Before a court can begin the process of equitable distribution, it has to make a preliminary determination as to what property can be divided.  For this purpose, there are three categories of property:  1)  separate; 2)  marital; and 3)  hybrid property.  Marital property is subject to division by the court, and separate property is not.  Hybrid property, as the name suggests, is somewhere in between.

Separate property, defined by the Virginia State Code § 20-107.3, includes the following:  1)  all property, real or personal, acquired by either party before the marriage; 2)  all property acquired during the marriage by bequest, devise, descent, survivorship or gift from a source other than the other party; 3)  all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property.

Marital property, also defined in Virginia Code § 20-107.3, includes:  1)  all property titled in the names of both parties, with some exceptions; and 2)  all property that is acquired during the marriage that is not separate property.

While these definitions are slightly wordy, the general idea is that if you owned property before a marriage or received an individual gift or inheritance during a marriage, you’re going to get to keep it after a divorce.  This sort of property is considered “separate,” and cannot be transferred from one spouse to another by a court.  All other property acquired during the marriage is considered “marital,” and will be split up by a court during the equitable distribution process.

The last category of property, “hybrid” property, is property that is part marital and part separate.  For example, let’s say Husband inherited a parcel of land prior to the marriage.  During the marriage, Husband and Wife built a small cabin on the land with money earned from their respective jobs, and they use it as a vacation home.

In this example, the cabin would be considered hybrid property.  Husband inherited the land before the marriage, and that part of the property would be considered separate.  But during the marriage, Wife contributed money, time and effort to the construction of the cabin.  The increase in value of the land created by the construction of the cabin is marital property.  In valuing the improved real estate for equitable distribution purposes, a court would probably say Husband is entitled to the entire value of the land plus half the value of the cabin, and Wife is entitled to the other half of the value of the cabin.

The determination of marital versus separate property can become complicated, especially if the marriage has a large number of assets or hybrid property is involved.  In many cases, it may be helpful to consult an attorney for help determining what property you are entitled to during an equitable distribution.

In closing, it’s worth noting that in many divorces the spouses do not wish to litigate the issue of property division in court, and they are able to reach an agreement on their own as to how to divide it.  When this happens, the spouses can enter into a written contract – called a property settlement agreement – that memorializes the agreement.  Property settlement agreements can be incorporated into a final decree of divorce, thereby allowing the spouses to bypass the need for a court hearing and avoid the uncertainty of leaving the decision up to a judge.

These are some helpful words from Richmond women who have been through divorce, presented by Scott Bucci of Bucci & Dix.

The rules of kindness always apply even though your former spouse may be angry, manipulative, or downright mean. Keep your integrity by refusing to stoop to a low level.
~ Angie ~

Be brave, be true to yourself and be strong. It is the hardest thing a woman could ever go through – letting go of her past life and all her hopes and dreams. Believe in yourself, believe that you deserve happiness, and believe that you will find it again.
~ Kate ~

My best advice is stop blaming yourself, try to be kind, and open minded; find friends, run, do stretching, take a deep breath, take regular walks, read some good books, keep a diary; put make-up on everyday, make yourself look BEAUTIFUL every single day, save money, try to surround yourself with happy positive people, and pray, pray, pray….
~ Anna ~

Just breathe! Focus on all of the positive aspects of your life. Despite the fact that it seems like you are the only one going through this difficult hardship, someone else has it ten times harder than you. Look at this experience as learning about your inner core. The best revenge will be to move on.. do it with integrity, honesty and grace. You are a beautiful woman and deserve so much better, and believe me better is out there!
~ Brandy ~

Change your bedroom to make it your own space. Even little things like new linens or rearranging the furniture can make it feel like a new room. Don’t forget to add scented oil or candles that smell just the way you like!
~ Julie ~

Bucci & Dix Law Firm, a leading legal firm for divorce, custody, and personal injury in Richmond. Bucci & Dix is an advertiser of Richmondmom.com.

Perhaps the most emotional aspect of a divorce or separation is deciding which parent or other individual will take custody of the children. It is generally easier on the family for parents to reach an agreement without court intervention, but sometimes that simply is not possible. A court will conduct an evidentiary hearing and decide the dispute for the parents if an agreement cannot be reached. Custody hearings can take place in either a Juvenile and Domestic Relations Court or a Circuit Court.

By statute, there is no presumption that one parent should have custody over the other. Rather, all decisions regarding a child’s custody or visitation will be guided by the “best interests” of the child, as determined by a judge according to pre-set legal standards set forth in the Virginia Code.

These standards include:

The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs; The age and physical and mental condition of each parent;

The relationship existing between each parent and each child;

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;

The role that each parent has played and will play in the future, in the upbringing and care of the child;

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;

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;

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;

Any history of family abuse as defined by Virginia law or sexual abuse; and such other factors as the court deems necessary and proper to the determination.

Following its balancing of the above factors, a court will determine what type of custody arrangement is in each child’s best interests.

The Virginia Code defines only sole custody and joint custody and authorizes the court to award either of the two.

Sole Custody means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child. Joint Custody can refer to several types of custody arrangements, including joint legal custody (where both parents retain authority to make decisions concerning the child) and joint physical custody (where both parents share physical and custodial care of the child).

These testimonials and pieces of advice were provided by Bucci & Dix Law Firm, a leading legal firm for divorce, custody, and personal injury in Richmond. Bucci & Dix is an advertiser of Richmondmom.com.