Wednesday, June 13, 2018

Reconciling in Virginia - The Law When You Work Things Out

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, an legal principles discussed in this post apply only to the Commonwealth of Virginia.

Introduction

What's the best thing I, as a family law attorney, can possibly hear from a divorce client?  Well, would you be surprised if I told you my favorite phone call from a divorce client is the one that starts with "Sam, stop working on my case, we've decided to reconcile"?

When I began practicing family law, I had big plans in mind for how I was always going to try to convince my clients to reconcile first, recommend counseling, anything to make it work.  It turned out, though, I had bought into the pop culture hype that people rush into divorces these days, when in reality they really don't (I dive into this a little further in my blog post discussing how the divorce rate is actually much lower than 50%).  As a result, by the time people come to me about a divorce, the odds are they've already tried most everything, and the marriage is already broken beyond repair.

Nonetheless, life happens, and while it's not nearly as often as I'd once hoped, the reality is I've had several cases over the years now that ended not with a Final Divorce Decree, but with the couple back in the same home, happily moving on with their lives together.  I even got an invitation once to the wedding of a couple whose divorce (from each other) I had handled a couple years earlier.

Now, you might look at this and say, "oh, well, there can't possibly be legal consequences from reconciling!  That's just a return to how things were - so everything resets, right?"  Well, it's actually not that simple.  The reality is, depending on how far along you were in your divorce process, what kinds of orders were entered, and whether or not you have kids, there are legal implications from a reconciliation, and actions that you have to take in order to protect yourself going forward.  In this post, I will discuss some of what happens under the law when you and your spouse begin the divorce process, but then ultimately work things out.

Simplest Case:  You've Separated, But That's It

So, the simplest case is that you separated from one another, but that was it.  No agreements were signed, no court orders were entered, no papers signed.  You just each lived apart for a while, then decided to get back together.  Here everything is simple - there really aren't legal steps you need to take.  Just resume living together.  If one of you was renting a place and are leaving that rental, make sure you talk to the landlord if you need to terminate your lease early.  But from a matrimonial law standpoint, you're set.

Slightly Tougher:  You Have a Signed Agreement

Now, let's go to the same scenario, but you've also already signed a separation or property settlement agreement and begun abiding by its terms.  However, let's assume still nothing's been filed in court, and then you reconcile.  There are a few things to know.  First, any transfers of property, changes of name on accounts or loans, etc., will survive your reconciliation.  So, if you want to get things back to how they were you will need to go through that process again.  This is particularly important for real estate, where you want to be able to take advantage of the benefits of being tenants by the entirety (a form of joint ownership only available to married couples).  Second, understand that by law a separation or property settlement agreement is terminated upon reconciliation, however, if your agreement has a reconciliation clause in it, it may survive your reconciliation.  In that case, you'll need to decide how, or if, you want the agreement to survive - particularly what happens to any support obligation while you are back together - and you should consider signing an amendment to put those changes into effect.

Remember that just because you worked things out now doesn't mean something won't go wrong again some day.  If, for example, your agreement obligates you to pay support of $1,000 a month, you reconcile and don't change anything, and then separate again in 5 years, it's possible your spouse will then come after you for 5 years of back payments ($60,000!).  You may have defenses to that claim, but they wouldn't be a guarantee - edit your agreement now, when you're on good terms.

What if Orders Have Been Entered?

Now, taking it to the next level, you might be asking what happens if custody, visitation, child support and/or spousal support orders have been entered before you reconcile?  Well, the first thing to do is figure out what kind of orders they were.  Were they pendente lite orders (orders entered after a short hearing just to determine what arrangements will be while your case is pending) or final orders?  If they were pendente lite orders, you can simply withdraw (or non-suit) the case in which those orders were entered, and by operation of law pendente lite orders terminate the moment their case terminates.  If they were final orders (say, from the J&DR Court), however, you will need to actively terminate the orders.  To do this, you will need to file a petition with the court that issued the order(s) (unless venue was transferred by the order(s)) seeking a modification based on a material change in circumstances, and then submit an agreed order terminating the order(s).

Again, the issue here, much like with agreements, is primarily protection if things go wrong down the line.  If you are reconciled for five years but then split again, you don't want to have to prove that you adequately supported your child while you were all living together to make up for your not directly paying the ordered child support.  You may be able to defend against the back support claim, but it's not a guarantee - and it could get very expensive in legal fees.  It's always safer to just not have a lingering order.

What if We Divorced?

Sometimes a reconciliation doesn't happen during the divorce process.  Sometimes it takes that time fully and completely away to realize that you've made a mistake, or that you've each grown.  So, yes, we do sometimes see reconciliations of couples that have already completed their divorce.

What you need to do in this event is going to be largely similar to the prior section, except that you almost assuredly only have final orders in place, not pendente lite orders.  Moreover, if you re-marry, any spousal support obligation would terminate at that point.  However, custody/visitation and child support orders would not, and still need to be taken care of.

There is an additional concern also at this point with property.  If you never transferred any real estate or similar property prior to your divorce, then upon your divorce you became tenants in common in any real property.  If you get re-married, this does not get automatically undone, you will need to actively re-title your property in order to become tenants by the entirety again.  Additionally, any accounts, retirement funds, life insurance policies, etc. in which you named your spouse as your beneficiary had those beneficiary designations automatically revoked at the time of your divorce.  Even if you never notified the companies of the change, you will need to re-filed your beneficiary designations in order for your spouse to again be your beneficiary.

Finally, when you divorce, if you divided any retirement accounts, it is likely that you had an Order or Orders entered to effectuate that division (frequently called Qualified Domestic Relations Orders, or QDROs).  For any defined contribution plans (401(k)'s, etc.) the division has likely already been completed, so you each now have your own accounts - it's fine to keep things that way.  For defined benefit plans (pensions, etc.), however, you will need to get an Order entered terminating the prior division Order, and get that new Order to the account administrator.  Otherwise, when you retire, you might be surprised to have money taken out and sent to your spouse.  While if you are still together at that point it may not matter, it would still be an inconvenience, and there can be administrative expenses involved - better to get that taken care of now.

Conclusion

The best news I can get as a divorce attorney is that my client and his or her spouse have found a way to work things out and have reconciled.  Nonetheless, my work does not end there, as I still need to ensure my client protects himself or herself and takes the legal steps necessary for the reconciliation to be smooth and complete.  As always, the smartest thing you can do if you are reconciling and aren't sure what your legal needs and obligations are as a result would be to consult an attorney.  If you have been going through a divorce (or are already divorced), are planning to reconcile, and want to know what you legally need to be doing, feel free to review our initial consultation policy above and then to shoot me an e-mail at SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up a consultation.  Our initial consultations are free for up to half an hour!

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