-Rob Hagy, Charlottesville Divorce Lawyer. If you have a case where a child's testimony about abuse may be required, please contact me at (434) 293-4562 or email me at firstname.lastname@example.org.
Charlottesville Divorce Lawyer Rob Hagy-Divorce Did You Know Number 11-Can A Child Testify By Closed Circuit Television?
Yes. Under certain circumstances set forth in this statute, a child can testify by two-way closed-circuit television.
-Rob Hagy, Charlottesville Divorce Lawyer. If you have a case where a child's testimony about abuse may be required, please contact me at (434) 293-4562 or email me at email@example.com.
When marriages go bad, feelings can be raw, making it tempting to want to hide assets to punish your soon-to-be ex. But if you get caught, the consequences can be severe, as a recent case shows us.
The couple in the case, Robert and Janet Foisie, decided to divorce in 2010. They went to mediation, where they agreed to fully disclose and equally divide their assets. Robert also allegedly told Janet during mediation that he had no “offshore assets.”
A year later, after both spouses had allegedly fully disclosed their assets in a Connecticut family court, they executed a divorce settlement leaving each of them with $20 million in securities and real estate.
After the divorce, however, Janet learned Robert did not disclose another $4.5 million in securities and millions more in promissory notes stashed away in a Swiss trust. Meanwhile, he had donated an estimated $39 million to his alma mater, Worcester Polytechnic Institute, which apparently left him insolvent when he died in 2018.
Janet sued WPI in federal court in Massachusetts, claiming the donation was a “fraudulent conveyance” that it shouldn’t have received and that she should be able to “claw” it back.
WPI argued that under Massachusetts law, a divorce proceeding must be “imminent” in order for a spouse to be considered a creditor entitled to pursue assets that were fraudulently transferred to a third party in order to thwart property division or alimony.
A trial court sided with WPI, but a federal appeals court reversed, ruling that under the state law in question — which was based on the Uniform Fraudulent Transfers Act — a creditor is simply “a person who has a claim.” This meant Janet was not barred from being a creditor just because the divorce already happened.
Now Janet will have the opportunity to seek the assets she’s apparently entitled to. While Robert did not benefit materially from the donation to his alma mater (except perhaps with an extremely large tax deduction), others hide assets in a variety of ways. This case shows that doing so is very unwise. The better approach is to talk to your family law attorney about how to get the fairest property division you can within the bounds of the law.
Court OK’s Prenup Turned Post Nup.
Prenuptial agreements are a useful way for a soon-to-be-married couple to protect assets they are bringing into a marriage. Essentially, these are contracts that lay out exactly what each spouse is entitled to (and obligated to) in the event of a divorce. If you and your soon-to-be-spouse are considering such an agreement, be sure to work with an attorney who can make sure it’s properly executed. Otherwise it may not be enforced, as nearly happened in a recent Michigan case.
In that case, Carla Skaates and her husband Nathan Kayser lived together before getting married. Skaates had a dental practice purchased with her own assets. Kayser, who worked there as a business manager, also had a business of his own. The couple owned a third business together.
When they decided to get married, they spent 16 months negotiating a prenup. According to its terms, if they divorced the dental practice would go entirely to Skaates, Kayser’s business would be solely his and the third business would be divided equally, with Skaates having an option to buy out Kayser’s share. Everything else was separate property not subject to division.
The agreement also included a “cooling off” provision mandating that either party wait four months before filing for divorce while participating in at least three marital counseling sessions.
Even though the agreement was styled as a prenup, the couple executed it just over a month after they got married.
Less than four years later, Skaates filed for divorce with no cooling-off period.
When a local judge enforced the agreement, Kayser appealed. He argued that it did not qualify as a prenup and was unenforceable as a “post-nup” because it left Skaates better off financially. He also argued it was void because Skaates breached it and because, like many post-nups, it violated public policy by encouraging divorce.
The Michigan Court of Appeals agreed with Kayser’s overall points about the enforceability of postnups but disagreed that they applied in this case. The court also observed that the couple attended marital counseling before Skaates filed for divorce and it was unsuccessful. It then ruled the agreement enforceable as a valid postnuptial agreement.
Some of the court’s language indicated that this decision easily could have gone the other way, however. So if you are negotiating a prenup, your best bet is to execute it before the marriage.
When many people hear the term “prenuptial agreement,” they think of celebrities and tycoons like Beyonce and Jay Z, Kim Kardashian and Kanye West and Mark Zuckerberg. After all, high-wealth individuals have more to lose if they get divorced. Still, there are plenty of reasons for “normal” people to consider entering into a prenuptial agreement (a contract you enter into with your spouse that details exactly what will happen in the event of a divorce) when they get married.
One reason might be an expected inheritance that you want to make sure remains in your family.
As a general principle, an inheritance that one spouse receives during a marriage should be safe. That is because in most states property that you bring into the marriage remains your “separate property” and can’t be divided during a divorce, as opposed to most other types of income and assets acquired during marriage, which would be considered “marital property.”
However, the devil is in the details. For example, if you put an inheritance into a joint bank account and use it for marital expenses, it may lose its protection as separate property. If you use it to improve your house, it could lose that protection as well. Even if you keep your inheritance completely separate from joint property, in some states it still may be applied toward child support, alimony and even your ex’s attorney fees.
However, a well-crafted prenuptial agreement can include language ensuring that a future inheritance cannot be divided or used toward legal fees or support in any circumstance, as long as your state’s laws permit this.
Admittedly, bringing up the idea of a prenuptial agreement can feel awkward to many people. Nobody headed to the altar wants to be thinking of divorce. But nothing in life is certain, and a little bit of foresight today can save you a lot of stress later on. Talk to a family attorney where you live to learn more.
Trial Court Could Depart From Child Support Guidelines Due To Unreimbursed Medical Expenses.
In the case of Ridenour v. Ridenour, the Virginia Court of Appeals, in a published decision, ruled that the trial court did not abuse its discretion in fashioning the child support award after finding that application of the child support guidelines was unjust and inappropriate and Code § 20-108.2(D) did not require any unreimbursed medical expenses be categorically excluded from child support calculations a matter of law.
The husband appealed from the final decree of divorce which awarded the wife child support in the monthly sum of $10,336. Husband contends that the trial court erred by deviating from the child support guidelines to include expenses for one of the children’s occupational therapist. Husband contends that such expenses were required to be treated as unreimbursed medical expenses and, therefore, excluded from the calculation of the child support award.
This Court disagrees. The applicable statutes do not mandate that the child’s occupational therapy expenses be treated only as unreimbursed medical expenses and categorically excluded from consideration when fashioning a child support award. The statutory scheme maintains the discretion of trial courts to evaluate the facts of individual cases and deviate from the child support guidelines in appropriate circumstances.
Last year, Amazon.com founder Jeff Bezos and his wife MacKenzie ended their 25-year marriage, joining hundreds of thousands of other couples who’ve obtained a “grey divorce” after age 50.
Even after MacKenzie walked away with shares of Amazon.com valued at $38 billion, Jeff remains the world’s wealthiest person with his $115 billion stake in the company. But if Jeff remarries, he’ll very likely get a prenuptial agreement that lays out in advance exactly what the new spouse would be entitled to should that marriage break up too. If you are in your 50s or older and you’re getting married, you should also consider a prenup because divorce can be economically devastating, particularly if you don’t have the resources of a Jeff Bezos.
Here are some things to think about when considering a “grey” prenup.
First, ignore any negative stigma associated with prenuptial agreements. Many people mistakenly believe a prenup means you either don’t trust your new spouse or you’re entering into the marriage with an eye toward divorce. The reality is that a prenup underscores that a late-in-life marriage is a serious commitment. People likely have significantly more assets to protect than they did when they were younger and they are more likely to have other obligations, like child support or alimony, that would give them even more reason to protect those assets. Additionally, they’re likely to have children and grandchildren to whom they will want to leave their assets.
A prenup can be a useful financial planning vehicle as you move into a new marriage. For one thing, you can use a prenuptial
agreement to address the financial well-being of both you and your soon-to-be spouse in the event of a divorce, while ensuring each
of you has assets to leave to your respective children. This can do a lot to head off potential tensions associated with
blended families. Without such an agreement, an estate plan can be altered at any time, creating the potential for additional
conflict and strife should the marriage end.
A prenup is potentially a good way to plan for your retirement. If you’re already past 50 when you marry, there’s a good chance your retirement assets will be supporting you sooner rather than later. If you both have retirement assets, you can decide in your prenup which spouse’s assets will be used for living expenses and whose assets you might delay receiving for tax purposes. Meanwhile, you can also build into the prenup arrangements how retirement accounts will be divided between a surviving spouse and the deceased
spouse’s children to ensure both are taken care of.
These are just a few things to consider. If you do decide to get a prenup for your later-in-life marriage, it’s important to have a family lawyer who is experienced in drafting these types of agreements represent you. It’s also important that you each have your own separate attorney to make sure both your interests are being represented adequately. This should lead to a fairer agreement and one
that’s less vulnerable to challenge should it ever need to be enforced. Talk to a family law attorney where you live to learn more.
When Should I Modify My Custody Order?
Custody agreements consider factors such as vacation schedules, holidays, monthly or weekly visitation schedules, as well as details related to children’s education, religious activities, extracurricular activities and even sports, based on everybody’s needs at the time of the divorce.
However, needs can change, so you might consider modifying your custody order. In most states, custody orders can be modified if there’s been a significant “change in circumstances” and if the current arrangement is no longer in the children’s best interests.
If a parent gets a new job that requires relocating, or if a parent has a new work schedule that makes the current arrangement very difficult, that might justify a modification. A significant change in a child’s schedule, whether for school, important after school activities, religious school or any number of things that are critical to the child’s development could necessitate a modification.
A modification might also be in order for other reasons, such as the other parent’s home being unstable or unsafe due to drugs, alcohol or violence, or a because of a parent’s incarceration.
If you plan to seek a modification, it’s generally up to you to prove a change in circumstances and to explain why a modification is in the child’s best interests. You will be expected to document all of this. If you think a modification may be in your child’s best interests (and not just in your own best interests), you should contact a family law attorney who is well-versed in custody issues right away.
Virginia Supreme Court Provides Helpful Guidance In Most Recent Declaration of Judicial Emergency Order.
The COVID-19 Pandemic has wreaked considerable havoc on many family law cases and the Virginia Supreme Court has recently tried to provide some relief to litigants affected by the Pandemic.
On May 6, 2020, the Virginia Supreme Court issued it's fourth order in response to the Covid-19 emergency. This order was a modification of the March 12, 2020 Order Declaring a Judicial Emergency In Response to Covid-19 Emergency. After the March 12, 2020 order, the Virginia Supreme Court issued an Order Extending Declaration of Judicial Emergency in Response to Covid-19 Emergency on March 16, 2020, and a Third Order Extending Declaration of Judicial Emergency in Response to Covid-19 Emergency on April 22, 2020.
Collectively, the orders on March 12th, March 16th, and on April 22nd, suspended all non-essential, non-emergency court proceedings and continued all civil matters (which cover family law matters) with an exception for emergency matters like protective order cases and emergency child custody or protection cases (which fall in the category of family law matters). The March 16, 2020 order required courts to give precedence on the their dockets for emergency matters. That same order gave judges the discretion to determine whether a matter was urgent enough to qualify as an emergency matter. Further, the March 16, 2020 order encouraged, consistent with existing law, the use of two-way electronic audio-visual communication. The April 22nd order took matters a step further by permitting the hearing of non-emergency matters by agreement via two-way electronic audio-visual communication. Despite the exceptions which allowed family law cases into the courts, the practical affect was to bring the court system to a grinding halt. Of course, that stoppage has come with a price. On May 6, 2020, the Virginia Supreme Court began making the price a little less steep.
The Virginia Supreme Court's May 6th order explained in great detail the challenges the courts were facing as a result of the COVID-19 emergency noting that "[e]very week, with the dockets limited only to emergency cases, adds approximately 60,000, 18,000 and 19,000 more cases to the growing backlog in the General District, Juvenile and Domestic Relations District Courts and Circuit Courts, respectively" and also noting that courts were short staffed and that little relief on that front could be expected in the short term due to to budget problems also created by the emergency. Obviously, the court system and all participants in it are facing challenging times ahead.
However, for the first time, while stating a preference for conducting hearings by video conferencing or telephone, the Court cracked the door open ever so slightly for the courts to begin hearing non emergency matters again. More specifically, the Virginia Supreme Court stated that "effective May 18, 2020, all courts may hear in-person non-emergency matters if they determine it is safe to do so, and provided they comply with the guidance for transitioning from emergency to routine operations provided by the Office of the Executive Secretary in order to minimize the risk of the spread of COVID-19 from in-person court proceedings."
While the courts are far from functioning at their former levels, this is a positive sign for the future. However, the impact of the last few months will be felt for many more months ahead and it will be imperative for family law attorneys to come up with strategies for navigating crowded future court dockets in a manner consistent with their clients' best interests.
As we all know, life often doesn’t go as planned. Nothing illustrates this more than divorce. Bankruptcy is similar. You made financial plans, but for whatever reason your debts got out of control and you realized you might need a court to protect you from creditors and grant you a fresh start. Money problems and marital problems often go hand-in-hand, so it’s no surprise that divorcing spouses may also be considering filing for bankruptcy. Which should you file first? The best answer we can give is, “It depends.”
If you file for Chapter 7 bankruptcy, your assets are combined into a “bankruptcy estate.” Some assets are protected, or “exempt,” which means they can’t be sold off to satisfy creditors. Under federal law, assets such as pensions, 401(k) plans, IRAs, Social Security benefits, alimony payments and child support payments are exempt. Most states allow you to protect all or some of the equity in your home, and most allow you to protect the equity in your cars. You can also protect up to a certain amount in household goods. “Non-exempt” assets are liquidated. You get a fresh start, but a bankruptcy can affect your ability to obtain credit for a while going forward. Chapter 7 is a relatively quick process, generally taking just a few months, but you can file for Chapter 7 only if your income is below a certain threshold.
Another option is Chapter 13. If you have a regular income, the bankruptcy court under Chapter 13 will create a plan to pay back creditors for up to five years. Meanwhile, creditors will have to stop collection and foreclosure. It is a longer process than Chapter 7.
If you’re dealing with crushing debt and a failing marriage simultaneously, it makes sense in many cases to file for bankruptcy first. Once you’ve filed for bankruptcy, no matter what type, an “automatic stay” is put into place, stopping creditors from contacting you, freezing your assets and property and temporarily halting all legal proceedings against you. The automatic stay applies to divorce proceedings, too, making it tough for a family court judge to divide up your property, and dragging out the divorce process even longer that it otherwise might be.
If you and your spouse are on fairly civil terms, you might consider filing jointly for bankruptcy before filing for divorce; in some states that would enable you to increase your exemptions. And it might simplify a subsequent divorce proceeding. If you file for Chapter 7, the process is usually complete within six months, allowing you to then move quickly to a divorce.
On the other hand, you might consider filing for divorce first if you and your spouse have a combined income too high to qualify for Chapter 7. Once divorced, you may be able to file for Chapter 7 protection individually instead of having to go through a Chapter 13 payment plan. Additionally, by going through a divorce first, you can resolve support issues prior to bankruptcy. Owing a significant amount in child support or alimony can affect how a bankruptcy will proceed.
Your best bet is to talk to a family lawyer who understands the interplay between bankruptcy and divorce.
IRS Cracks down on alimony payments.
If you’re paying alimony, you can declare the amount you’ve paid each year on your income tax return and receive a deduction. Similarly, if you receive alimony, you’re required to report the amount you receive during the year on your tax return as income.
Unfortunately, it appears many taxpayers are being less than completely precise when they report these amounts on their returns.
A recent government report identified a huge national gap between the alimony deductions claimed by payers and the alimony income claimed by receivers. And as a result, the Internal Revenue Service is cracking down.
The report analyzed nearly 600,000 tax returns involving alimony that were filed for the year 2010, and found that reported deductions exceeded reported income by more than $2 billion. In fact, nearly half of all returns in the study showed discrepancies between the amount the payers claimed as a deduction and the amount the recipients claimed to have received.
In addition, a large number of alimony payers didn’t provide a tax ID for the recipient on their tax return –despite the fact that they’re legally required to do so.
In response, the IRS has announced that it is changing the way it selects tax returns for audits in order to catch more suspicious returns involving alimony, and it will more thoroughly investigate taxpayers who might be misreporting their payments.
The agency is also planning to increase the penalties for taking an alimony deduction without providing the recipient’s tax ID.
Of course, not everybody who over-reports payments or under-reports receipts is doing so maliciously. A lot of the discrepancies stem from legitimate disagreements and misunderstandings between spouses about what counts as alimony in the first place.
For instance, alimony is treated differently from child support for tax purposes – there’s no tax deduction for child support payments. But sometimes people combine payments of alimony and child support, and then get mixed up over how much was for each.
There have been cases where spouses have bought items for an ex or made payments to a third party in lieu of making direct alimony payments. This can create a lot of confusion. There can also be confusion if a spouse falls behind on alimony in one tax year and then makes up the difference in another tax year.
And it’s important to note that the tax deduction for alimony only applies to payments that are legally required under a divorce agreement. If you make a payment to an ex-spouse that isn’t legally necessary, it doesn’t count as “alimony” even if you intended it for his or her support.
If you have any questions about how much alimony you should be reporting – especially if you believe your spouse is reporting a different amount – it would be wise to speak to a family lawyer to make sure you’re handling your taxes correctly. That’s a lot easier than having to straighten things out later with an IRS agent!
-Rob Hagy, Charlottesville Divorce Lawyer. For help with these and other issues, please call at (434)293-4562.
I am a divorce and domestic relations attorney located in Charlottesville, Virginia. I practice in all of the cities and counties making up Central Virginia (Charlottesville, Albemarle, Buckingham, Greene, Fluvanna, Orange, Louisa, Goochland, Nelson). I also appear in Waynesboro, Stanton, Augusta, Harrisonburg, Amherst and Lynchburg. I am also available to consult or appear with clients throughout the rest of Commonwealth of Virginia and even other states if their rules permit my appearance.