If you are anything like me, you are avoiding it.  But it’s important to do.
According to USA Today, almost three-quarters of adults under the age of 34 do not have a will.
And while writing a will might not be a barrel of laughs, not having one puts your family at risk.

If you haven’t created one yet, The Geller Law Group is giving away fifty gift certificates each worth $250 toward legal services in for families in DC, VA, NC and MD.

Click over to MoneyWiseMoms and enter to win before Thursday, March 20th 2014 at midnight EST

Melanie Friend

My wife and I just got divorced last year and have been sharing equal custody of our son. Now I’ve been transferred to another city for work. What happens with custody of our son?

 Thanks to CowanGates and Melanie A. Friend for this valuable information pertaining to family law.

My husband and I separated, and the children live with me most of the time. How do I ask a court for child support? How does the court decide how much child support I’ll receive?

You will need to either file a petition for child support in Juvenile and Domestic Relations Court, or ask for child support as part of your divorce proceeding in Circuit Court, depending on the circumstances of your separation. I assume from the way the question is asked that you don’t have any formal custody order yet. From either court, you would want a custody and visitation order to go along with the child support order.

Virginia has a guideline formula for calculating child support. Unfortunately, unless you happen to be an algebra professor, you probably won’t be able to figure out the child support payment in your head. (Like most family law attorneys, I use a software program to help make certain I don’t mess up the math.) The statute is fairly dense, and the calculation does involve several factors. The formula takes into account how many children you have, the gross (pre-tax) incomes of both parents, the cost of any health insurance premiums paid for the children, and any costs the custodial parent must pay for child care while he or she works. If you and your husband share physical custody of your children, the number of days per year that you each have the children in your care would be a factor as well. When you go to see an attorney about child support, or if you go to court without a lawyer, make certain to take pay stubs, documentation of the health insurance premium for the children, and documentation of the childcare costs, so that the attorney or the judge has accurate figures to use in the calculation.

Melanie Friend

Melanie Friend practices family law at CowanGates with a focus on divorce, child and spousal support, child custody and visitation, adoption and prenuptial agreements. She joined the practice in 2007 and was named principal in 2012. Before CowanGates, Friend completed a clerkship for the Honorable Timothy E. Meredith of the Maryland Court of Special Appeals. She received her undergraduate degree from Thiel College in 2003 and her law degree from Marshall-Wythe School of Law at the College of William and Mary in 2006.

Friend is a member of many local associations, including the Metro Richmond Family Law Bar Association and the Family Law Section of the Virginia State Bar. She serves as judicial candidate endorsement chair on the board of the Metropolitan Richmond Women’s Bar Association and serves on the Young Trial Lawyers leadership committee. Friend is also qualified as a Guardian Ad Litem for children. In March 2013, Friend was named the Richmond Bar Association’s 2013 Young Lawyer of the Year.

Click here for more information.

Liza Hill, Mosaic Mediations

Divorce. It’s a word that no one wants to hear, but the reality is that many couples find themselves faced with the unthinkable.

If you and your spouse are dealing with the difficult challenges of divorce, it’s important to know the alternatives available to help you deal with the associated issues.

For years, the only alternative to working through the distribution of assets, determining custody of children, and agreeing on other aspects of divorce was to go directly to a lawyer. Both the husband and wife incur extremely high costs with their own lawyers, and the process is often lengthy and frustrating.

Today, there is an alternative. If you or someone you know is facing divorce, Mosaic Mediation can  help more than the traditional legal system. Liza Hill is the owner of Mosaic Mediations and she has the education, experience, and skills needed to mediate between couples and help them resolve issues faster.

Liza received her law degree from the University of Richmond and has practiced family law for many years. She has extensive experience handling juvenile and domestic violence cases. She still maintains a small private law practice, but her real passion is focused on mediation.

“The national average on the cost of divorce in 2008 was estimated as high as $38,000. That’s a lot of money by anyone’s standards. Divorce is difficult enough without the high financial costs. The average cost of mediation services is around $5,000 which is a substantial savings of money — but also time and frustration,” Liza explains.

Exactly what are mediation services?

Liza explains that mediation is a way to have a couple work through their issues together to expedite the process. “We don’t get mired down or stuck in the process as often because if we can’t resolve one particular issue, then we can table it and move along to the next one.”

Liza also explains that she has a professional network of people who can be utilized when appropriate. Issues may surface about the psychological effects of the divorce on children and she refers to psychologists or therapists specializing in these issues.

In case you’re worried that mediation means Liza will refer into her existing law practice, that is not a problem. She is bound by law NOT to self-refer. If issues can’t be resolved through mediation, which is rare, she will only refer outside her own law practice. As a mediator, she is also bound by the same guidelines and rules of privacy and confidentiality so there is no worry about what is discussed at any time.

When asked why she decided to focus on mediation services, Liza responds quickly and simply, “I really want to work with people who want to resolve things and I want to feel good about what we’re doing together – at the end of the day, mediation makes me feel good about helping people work together and it offers me a better quality of life than traditional law practice. It’s a way for me to make a difference,” she explains.

We hope that you never need the services offered by Mosaic Mediation, but if you find yourself in a divorce situation, this is one service you can’t afford to ignore. Liza can make the process of divorce easier and quicker so you can both move on with your lives.

Mosaic Mediation offers Richmondmom.com readers a 20% discount on mediation packages. Just mention your Savvy Saver card to take advantage of this service.

Mosaic Mediation is an advertiser on Richmondmom.com.

Click here for some helpful advice from women in your shoes.

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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.

Bucci & Dix is a site sponsor of Richmondmom.com.

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.