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!

Pets and Divorce in Virginia: Who Gets the Dog?

As always, before reading today's blog post, please check out my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

What's the most contentious issue in divorce cases that has nothing to do with kids or money?  In my experience, it's pets.  It's no secret that as American society has evolved, we've come to view our pets more and more like members of our families.  The law, however, has been slow to catch up. Nonetheless, as wills that provide for animals, concepts of "animal rights," and even animal-focused legal organizations have become more common, the issues that relate to animals have come to play a more prominent role in all fields of law.  One of the biggest areas of law that can see animals at center stage is divorce law.

Yes, a divorcing couple fighting over the family pet may, from a distance, seem silly, but is it really?  Especially for couples with no children, chances are you've poured a lot of time, energy, money and love into your pet.  No wonder you might not want to just walk away from it.  In fact, I've seen divorces where the pets were the primary issue - where a party gave up all of her rights to her spouse's retirement pension in exchange for the cat, for example, or another where the entire divorce settlement negotiation fell apart over the family horse (and no, I'm not talking about a multi-thousand dollar thoroughbred race horse here).  There is actually published case law in Virginia regarding the disposition of a family dog.

The point is, pets are taking on an increasing role in divorce law, and in today's blog post, I hope to cover some of the legal issues surrounding the distribution of pets in a divorce case in Virginia.

First and Foremost: Pets are Property

No matter how much you may love your dog, cat, or other animal, the first thing you need to understand is that by law in Virginia, pets are property.  That's so important a point that I'll say it again - by law in Virginia, pets are property.  In theory, pets should be treated no differently in a divorce in Virginia than a TV or a sofa.  Of course, theory rarely lives up to reality, and there are a number of issues that come into play that result from pets being property.

Marital Property vs. Separate Property

Let's say you marry someone who already has kids over whom they have custody.  You are married for 8 years and you absolutely dedicate yourself to your step-children and the children truly do see you as another parent.  Unfortunately, your marriage didn't work out quite as well as your relationship with your step-kids, and you divorce.  Under Virginia law, you may nonetheless be able to get visitation with, and in some extreme cases, even custody of your ex-step-children.  The same does not apply, however, for pets.

If your spouse already had a dog, for example, when you got married, and you spent your entire marriage being the only one in the house that actually took care of the dog (fed it, trained it, took it to the vet, etc.), the dog is still property, and the dog is still the separate property of your spouse.  This means if you divorce, your spouse gets the dog, period (unless you have an agreement otherwise, which I'll get to below).

One of the effects of pets being property is that the rules of determining "marital" vs. "separate" property from the Virginia Code apply.  This means that if the pet was owned by one party before the marriage, a gift to one party during the marriage, an inheritance of one party during the marriage, or purchased during the marriage with money that was itself separate property, the pet is separate property and goes with the spouse that owns the pet.  On the other hand, if the pet is purchased during the marriage with marital money, it is marital property subject to division (for more on the difference between separate and marital property, see my blog post on the issue from October 16, 2014).

Division by Agreement

Another side effect of pets being treated like property is that you can agree to pretty much anything you want to in regards to how the pet is "distributed," even if the pet is separate property, and the court will enforce that agreement.  Unlike child support or child custody and visitation, a court has no power to set aside any agreement regarding property, no matter how ridiculous it seems, unless it is susceptible to another form of attack on a contract.

As a side note, I'd point out this is one area where the fact that the pet is a living being does probably have some effect.  If you decided, for whatever reason, to agree to divide a sofa by literally sawing it in half, you'd be allowed to do that.  However, animal cruelty violates public policy, so an agreement to divide your cat by literally sawing it in half would not be enforceable.

Nonetheless, short of that kind of issue, you can do pretty much whatever you want with the pet by agreement, and the court will enforce that agreement.

Division by Court

If, however, you have a pet that is marital property, and you cannot reach an agreement on what to do with the pet, then the decision will be made by the court.  As with all issues of marital property, the court will be guided by the rules of equitable distribution laid out in Virginia Code Section 20-107.3.  This includes considering the list of factors in that Code section - in which, I would note, "the best interests of the property" is not a factor.  Of particular relevance is that the Code states "the Court may... divide or transfer or order the division or transfer, or both, of jointly owned marital property."

For a long time, all courts took this to mean that all that a court can do is award the pet to one spouse or the other and then order the other spouse to be compensated for a share (usually half) of the determined monetary value of the pet.  Of course, pets have all sorts of sentimental value, but as property, that doesn't go into the equation.

It's important to note that most judges still view the division of pets this way.  As a result, many fights have erupted over who took care of the pet the most (the contributions of each party to the "maintenance" of property is one of the explicit factors for dividing property), whether or not the pet is even marital property, whether or not one party has "title" to the pet (since a court cannot order "title" to be transferred even for marital property - only for the other spouse to be awarded a part of the monetary value) and so on.  Where the court does divide the pet, usually the party that has taken the most care of the pet will get it, but that's of course not always true.

However, some judges have taken a different view.  Several judges have now concluded that the word "may" in the Code section makes the division or transfer optional, and that the court may also elect not to divide or transfer a marital pet, and instead order the joint ownership to be maintained while awarding varying forms of possession.  What does that mean?  It means custody and visitation.  Yes, several trial judges in Virginia have ordered custody and visitation arrangements regarding pets in the past five years or so based on this reading of the law.  The judges have asserted this is allowed because a) as weird as it would be, they could do exactly the same thing for a sofa or TV if they thought it appropriate, and b) given all of the intrinsic value of a pet, determining an equitable distribution of the pet is unreasonable.

The Court of Appeals has yet to weigh in on this matter, and as a result it is not the law across Virginia, but it's worth knowing that those judges are out there, and the idea is gaining popularity.  Now, as pets are property, the "best interests" of the pets are not factors in setting that custody and visitation schedule, but nonetheless, the schedules put out by some of these judges have resembled common child custody and visitation schedules quite a bit.

All of that being said, I do want to re-emphasize once again that most judges still will distribute the pet to one spouse or the other rather than order a custody and visitation arrangement.

A Brief Note About Protective Orders

Pets' status as property has meant many bad things for pets over the years.  One of the worst has been in the context of protective orders.  We heard many stories where a protective order was entered and the estranged spouse, ex-boyfriend or girlfriend, or other abuser would do something horrific to a pet in retaliation, with little penalty.  Even worse, if the ex-boyfriend or girlfriend or the estranged spouse technically owned (either on his or her own, or jointly) the pet, they could just take the pet and disappear with it.

In response to this problem, last year Virginia became one of the first states in the country to include pets in protective orders.  This is a very small step - protective orders still cannot be taken out on behalf of pets or in response to violence against pets - but an important one.  Today, if someone obtains a protective order, they not only can require the target of the protective order to stay away from them, their home, their family members and their children, but they can also require the target to stay away from the household pets.  This means that attacking a pet in retaliation for a protective order being entered, or running off with the pet, would now violate the protective order itself, which is a criminal offense subject to more severe penalties than most animal cruelty charges.

Conclusion

While the law is always changing and developing, how to deal with pets in divorce is a very complicated and growing issue.  If you are involved in a divorce and need help figuring out what to do with the pets, please feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Relevant Changes in Virginia Law - 2016 Edition

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

Introduction

I believe I have mentioned before that one of my favorite parts of being a lawyer is that it keeps me on my toes because the law is constantly changing.  Everything I've written in the past could well prove false in the future with a stroke of the Governor's pen or a new appellate opinion.  While caselaw is its own monster, late April and early May is an interesting time to be a lawyer in Virginia - at this point, we know all of the new laws that will take effect this year, but they won't take effect until July 1st (except for emergency laws), so we have some time to get ready.

As I did in 2014 and 2015, I have reviewed the new laws being implemented this year that I consider relevant to this blog, and will summarize them below.  As noted, all laws listed here do not go into effect until July 1st.

Strengthening Protective Orders

One of the major legislative compromises of this session was a deal reached between Governor McAuliffe and the Republicans in the legislature regarding guns.  McAuliffe agreed to allow a finding of Attorney General Herring which ended Virginia's reciprocity with most states for concealed carry permits to be reversed in exchange for the criminalization of possessing a firearm when a family abuse protective order is entered against you.  Under HB 1391 and SB 49, it is now going to be a felony to possess a firearm if a family abuse permanent protective order has been entered against you (previously it was just a misdemeanor to buy or transport a firearm while under a permanent protective order).

Additionally, HB 610 now makes it a felony to stalk someone who holds a protective order against you, or to assault and batter such a person if the assault and battery caused any bodily injury.  Previously it was only a felony of the assault caused "serious bodily injury."

Finally, HB 1087 and SB 323 makes it a felony if you violate a protective order while possessing a firearm (it is typically only a misdemeanor to violate a protective order and there was previously no enhancement for using a firearm while violating one).  While this would seem unnecessarily cumulative with HB 1391 and SB 49, it's actually not, because HB 1087 and SB 323 apply to all protective orders, including preliminary protective orders, emergency protective orders, and non-family abuse protective orders, while HB 1391 and SB 49 apply only to final/permanent family abuse protective orders.

Child and Spousal Support for Support Prisoners

One of the oddities of support law is that the harshest tool the court has available for someone who refuses to pay support is sending them to jail - but sending them to jail will typically prevent them from making any support payments at all.  HB 428 orders any city or county with a prisoner who is in a prison work program to pay between $20 and $40 per week to the Department of Social Services for them to provide as support to the spouse and/or children of the prisoners.  Obviously that's not a whole lot of support, but when you're usually getting nothing, something is still an improvement.

Legal Age for Marriage Changed

In Virginia, the law has been for some time that the legal age for marriage is 18 without parental consent, 16 with parental consent, and, in some circumstances involving pregnancy, can be as young as 14.  However, with the modern awareness that some parents don't always act in their child's best interests, and with an increasing amount of concern about coerced or forced marriage, there has been a growing consensus towards getting rid of "parental consent" marriages that could really be "parental coercion" marriages.  HB 703 now sets a uniform age of marriage in Virginia at 18, and parental consent is no longer involved.  A minor under the age of 18 may petition a court for emancipation in order to get married, in which case a judge must make a series of findings, including that there is no parental coercion (or any other kind of coercion) involved and that the minor is mature enough to make this major decision.

Spousal Support when Divorce Denied

Just a couple months ago, I mentioned that one of the major divorce uh-ohs is not requesting spousal support in your pleadings, and I noted that you should include such a request in all of your initial pleadings, in case one gets struck.  This was based on a case from 2014 where a woman had her complaint for divorce struck when she failed to prove her grounds of divorce, and then the divorce was granted based on her husband's counter-claim, where he did prove his ground.  The woman requested spousal support in her complaint, but not in her answer to the husband's counter-claim, and the husband did not say anything about spousal support in any of his pleadings.  The Court of Appeals held that since the woman failed to prove her grounds of divorce and her complaint was struck, her entire complaint was gone, including the request for spousal support, and she was stuck with nothing.

The General Assembly decided this was unfair and has now enacted SB 71.  SB 71 provides that if a party fails to prove their ground of divorce and their complaint or counter-complaint for divorce gets struck as a result, their request for spousal support still survives.  It's still a best practice to request spousal support in all of your initial pleadings, but if you make the mistake the poor woman in 2014 did, you now have an avenue for relief.

More Spousal Support Changes

Another recent case of some controversy is one from 2013 where a husband was ordered to pay pendente lite spousal support and he did so by using funds that were unquestionably marital funds.  As a result, when it came time for the trial in the case, he had greatly depleted the marital funds available for division, while just tucking away his post-separation earnings to build up a large stockpile of separate money.  The Court of Appeals held that this was acceptable under Virginia Law, and he was in no way obligated to pay the pendente lite support using separate money without a court order saying so.  SB 70 now reverses that equation - a party ordered to pay pendente lite spousal support (or child support) must do so using post-separation earnings unless the court orders otherwise.

Additionally, the factors that are used to determine spousal support have long had an oddity - the law required that the court consider what led to the breakup of the marriage when deciding whether or not to award spousal support at all, but once the decision has been made to award support, then the cause of the breakup of the marriage is not one of the factors the court is to consider when setting the amount and duration of the support award.  Now, practically speaking, these things still got into the factors because they were often treated as either "negative non-monetary contributions to the well-being of the family" or "such other factors" as the court sees proper to consider - two things that are properly part of the statutory factors.  However, HB 668 has now expressly made whatever leads to the breakup of the marriage a factor for the court to consider when setting the amount and duration of spousal support.

Landlords Can't Kick Tenants Out in a Tenant's Assertion

The first time I ever took a tenant's assertion to trial, the landlord's attorney caught me off-guard by trying to turn one of the tenant's tools into a double-edged sword.  My client was seeking relief in the form of a rent abatement, future escrow payments, and other such remedies, but one of the remedies available in a tenant's assertion is the power of the judge to terminate the lease and order possession returned to the landlord.  This is a tool often used by tenants who both want a rent abatement and to just get out of the property because the relationship with the landlord has broken down so badly - but in this case, my client didn't want to leave for many reasons.  The landlord, however, knowing there was still almost a year left on my client's lease, thought my client was too much of a trouble maker (she was suing him, after all) and wanted her out.  In my case, the judge felt this demand was ridiculous - my client was entitled to the services she'd bargained and contracted for - but I later learned that not all judges felt this way, and this was a common tactic of landlords to get rid of troublesome tenants.

HB 1209 and SB 377 finally take this power away from landlords.  The law is now being changed such that the lease termination remedy of a tenant's assertion can only be invoked by the court if it was requested by the tenant and possession can only be ordered returned to a landlord in accordance with an unlawful detainer action.  This is one more step in the very long process to try to equalize the power between landlords and tenants in Virginia courts - although some would say there's still a long way to go.

Conclusion

To me, there's little more exciting than the routine changes in the law I practice.  But it is also my job, not yours, to keep track of these laws.  If you think that your legal situation may have changed because of a change in law, you should consider talking to an attorney.  If your situation is in a field I practice, review my initial consult policy, then call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up your consultation.  Our initial consultations are free for up to half an hour!

Annulments in Virginia - A Brief Primer

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

Introduction

As most middle school history students can tell you, once upon a time, divorce did not exist as a legal entity in the western world.  Instead, the only way you could end a marriage was by getting an annulment, an instrument declaring that your marriage was invalid to begin with.  As you can imagine, this was hard to do (in fact, the difficulty doing it was what led to Henry VIII splitting the Anglican Church off from the Catholic Church, directly impacting the past 400 or so years of history).

In the current age, the availability of not just divorce, but no fault divorce, makes the concept of an annulment somewhat quaint, but it does still exist under the law, and our firm does get at least a few inquiries each year about annulments.  In today's post, I will do a very brief primer on what Virginia law is regarding annulments.

Advantages of Annulment vs. Divorce

Now, your first thought might be, why bother with an annulment when a divorce is so much easier to get?  Well, annulments do offer several advantages.  Outside the legal context, annulments are sometimes necessary for you to remarry within your religious order.  Moreover, there can be psychological benefits if your marriage was toxic to having some confirmation that you should never have been married in the first place.  Within the legal realm, an annulment of a void marriage (as opposed to a voidable marriage, which I will get to in a moment) ensures that you will not be responsible for spousal support, and takes away the availability of equitable distribution of property, which depending on where you stand, can be advantageous.

Void vs. Voidable Marriages

Now, it's important to note that there are two types of annulments - annulments of void marriages and annulments of voidable marriages.  In the case of void marriages, these are marriages that were invalid the moment they were supposedly entered into.  In fact, under the law, they have no effect whatsoever, and you don't even need a Decree of Annulment to leave the marriage and remarry.  Nonetheless, a Decree of Annulment does clarify and finalize that you were, in fact, in a void marriage, that you can't later be hit up for spousal support, and that you can't be charged with bigamy if you re-marry.  A voidable marriage, however, is actually a marriage with a defect that makes it improper, but you can overcome it by either later ratifying your marriage, or simply disregarding the problem.  A voidable marriage is considered valid until a Decree of Annulment is entered, so while you can still say you've never been married before after an annulment of a voidable marriage, you cannot remarry until the annulment has been entered, and you can still be hit for spousal support and have to divide up property equitably since the marriage did create certain rights while it was valid.

So, what kinds of invalid marriages are void and what kinds are voidable?  The list is actually incomplete, as it comes from both statutory and case law, but here's a short list of some marriages that are void in Virginia:

• Bigamous marriages;
• Incestuous marriages;
• Marriages where either party is under 18 without consent of their parents;
• Marriages where either party is under 16 (with an exception for pregnancy).

As you can probably guess, prior to 2014, same sex marriages were also void, and prior to 1967, interracial marriages were also void in Virginia.

Some examples of invalid marriages that are merely voidable are:

• Marriage based on some form of fraud;
• Marriage involving at least one party that lacked capacity to consent;
• Marriage where one party was impotent at time of marriage;
• Marriage where one party had been convicted of a felony prior to the marriage without the knowledge of the other party;
• Marriage where the wife was pregnant with another man's child at the time of marriage without the spouse's knowledge;
• Marriage where another woman has the husband's baby within 10 months after the marriage and the spouse was unaware of the pregnancy at the time of marriage;
• Marriage where either party had ever been a prostitute without the other's knowledge;
• Per a very recent Virginia Court of Appeals case - marriage that was not properly licensed at the time it was entered (as opposed to a marriage not legally licensed at all, which would be void).

Fraud

So, the most common form of annulment we see is a claim of fraud.  Fraud occurs where your spouse made some kind of material misrepresentation to you prior to your marriage, that not just you subjectively, but a reasonable person objectively, would not have entered the marriage had you known the truth.  Some common examples are where the spouse claims to make substantially more money than he or she actually does, denies having any sexually transmitted diseases that he or she actually does, or claims that he or she does or does not want to have children when the opposite is true.

If you can prove that this fraud occurred, and that you would not have gotten married had the fraud not occurred, you actually do have a case for annulment (though remember, fraud makes a marriage voidable, not void, so the legal value of an annulment is limited).

Cohabitation and Two Year Marriage Rule

After all of that, however, we get to a big catch.  For most voidable marriages (not all, but most), even if you can prove your case, you still cannot get an annulment if either a) you "cohabited" with your spouse willingly after you learned of the facts that give rise to the annulment complaint, or b) you have been married at least two years.  Yes, this is even true of fraud - after two years, you can only get divorced, not get the marriage annulled, even if you don't discover the fraud until years later.

This rule is why our firm turns away most potential annulment clients - they usually have been married for two years, and no longer can seek an annulment.

Conclusion

Annulments are an ancient element of family law that is rarely available and even more rarely useful today.  Nonetheless, it is still a part of modern family law, and there are situations in which pursuing an annulment is worth your while.  If you are considering an annulment and would like to consult an attorney, feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com (although you may want to check out my new Initial Consultation Policy page before you do).  Our initial consultations are free for up to half an hour!

Virginia Divorce and Your Retirement - What Happens to Your 401(k) When You Divorce?

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

Introduction

In this day and age, saving up for retirement is a critical part of any person's career.  When you get divorced, however, your retirement savings generally do not escape unscathed.  After all, if your spouse has been staying at home to take care of the kids, allowing you to work and make substantial income, is it really fair for your spouse to get stuck with none of your retirement savings?

The law surrounding what happens to one's retirement in a divorce is very complicated.  One blog post cannot possibly hope to capture the scope of this issue, but in this post, I hope to provide a basic outline of how retirement assets are handled in a divorce in Virginia.

Retirement Benefits Earned During Your Marriage are Marital Property - With One Big Exception

First of all, like all money earned while you are married, and property purchased with money earned while you are married, retirement benefits earned while you are married are marital property, and subject to division by a divorce court.  There is one big exception to this, however, and that is Social Security benefits.  Your Social Security benefits are always your separate property (this is by mandate of federal law), so a divorce court cannot touch your Social Security.

Now, you might already be thinking of some questions.  How do I determine what benefits were and weren't earned during the marriage?  What time period counts as "during the marriage"?  How does a court determine how to divide those benefits?  Moreover, since I can't touch my retirement until I'm a certain age, how does a court physically divide those assets?

The Basic Rules for Dividing Retirement Benefits

Well, first of all, the basic rules for dividing retirement benefits are laid out in the Code of Virginia - specifically Section 20-107.3(G)(1), where the Code states that "upon consideration of the [equitable distribution factors]...  the court may direct payment of a percentage of the marital share of any [retirement account]... the court may only direct that payment be made as such benefits are payable.  No such payment shall exceed 50 percent of the marital share of the cash benefits actually received by the party against whom such award is made. 'Marital share' means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent."

So, let's parse all of that out.  The first part tells us that retirement assets are divided upon consideration of the equitable distribution factors listed in Section 20-107.3(E).  So this tells us that the division of a retirement account is, generally, subject to the same rules as division of all other marital property - meaning there is no automatic 50/50 division of the property, rather the court must decide what is fair based on the list of factors.

The next part just tells us that the court can divide retirement accounts.  After that, we see that the court cannot require those benefits to be paid until they are actually payable - so you can't face a penalty for having an early withdrawal from a 401(k) since the court cannot force you to make such an early withdrawal.

Next, we see a requirement that the non-owning spouse cannot be awarded more than 50% of the marital share of the benefit.  This is an important difference between how retirement benefits and other marital property are divided.  While the court may generally conclude that the 20-107.3(E) factors warrant your ex getting 65% of the marital property, the court cannot award your ex more than 50% of the marital share of your retirement account.

Note also that the rule does not restrict the other direction.  In other words, if the court determines that the factors under 20-107.3(E) warrant your ex only getting 35% of the marital property, then the court also has the option to only award your ex 35% of the marital share of your retirement benefits.

Finally, the section tells us that the "marital share" of those benefits is the rights in the benefits that are earned between the date of marriage and the date of separation (not the date of divorce), so all benefits earned after the separation are your separate property.

How to Calculate the Marital Share

So, saying how the marital share is defined is one thing - actually calculating it is quite another.  So, what does all the legal jargon about "that portion of the total interest, the right to which was earned during the marriage" actually mean?  Well, it depends on what type of retirement account you are referring to.

There are two types of retirement accounts - defined contribution plans, and defined benefit plans.  A defined contribution plan is a plan where you contribute certain amounts over time, and then, within certain rules, once you reach a certain age you withdraw what you want to withdraw.  Examples of defined contribution plans are 401(k)'s, federal Thrift Savings Plans, and IRAs.  A defined benefit plan is one where, upon certain conditions being met, you become entitled to certain regular payments for the rest of your life (or until a set time).  Examples of defined benefit plans are your standard pensions, retirement annuities, federal FERS and CSRS benefits, and Virginia state VRS benefits.

For defined contribution plans, the marital share is all contributions made between the date of marriage and the date of separation, plus all earnings and losses attributable solely to those contributions.

For defined benefit plans, the marital share is usually defined by a formula.  You take the total number of months (a) between the date of marriage and date of separation, and (b) where you were employed by the employer whose plan you are dividing, and then divide that by the total number of months you were employed by the employer whose plan you are dividing (both during and not during the marriage).

An example would be that if you began work for an employer with a defined benefit plan on January 1, 2010, got married on January 1, 2011, separated on January 1, 2012, and left that employer on January 1, 2013, your numerator would be 12 (total months you were employed during the marriage), and your denominator would be 36 (total months you were employed), for a fraction of 1/3.

Similarly, if you got married on January 1, 2010, began work for an employer with a defined benefit plan on January 1, 2011, separated on January 1, 2012, and left that employer on January 1, 2013, your numerator would be 12 (total months you were both employed and married), and your denominator would be 24 (total months you were employed), for a fraction of 1/2.

Once you get your fraction, you then multiply it by your periodic payments, to give you the portion of those payments that is marital.  This is not the portion your spouse gets - it's just the portion that is marital.  That is the portion that gets divided.

How do courts physically divide the retirements?

So, this probably sounds very complicated, especially if you have to do it yourself.  Moreover, since the benefits can't be kicked in until you'd normally be eligible, you might be wondering if you have to keep this in mind for potentially decades, then meticulously calculate a division of each payment.  Fortunately, you do not - rather, the Court will enter an order directing your retirement benefit administrator on how to divide your retirement assets.  It is then on your administrator to make sure it is done properly.

A federal law called the Employee Retirement Income Security Act of 1974 (ERISA), which has been amended multiple times since 1974, creates a large number of protections for retirement accounts, and also provides the means of dividing most retirement accounts.  ERISA creates a concept known as the "Qualified Domestic Relations Order" (QDRO, generally pronounced like "quad-row").  QDROs are universally recognized orders that, if they meet certain conditions, will require a retirement administrator anywhere in America to properly divide a retirement account.

For defined contribution retirement plans, the QDRO will lay out the relevant dates, and then require the plan administrator to calculate the marital share, divide the marital share, then take the other spouse's portion of the marital share and open a 401(k), IRA, or other equivalent account in that spouse's name with the funds.  Once the new account has been created and the money removed from one and put in the other (known as the funds being "segregated"), the process is complete and you are back to having complete control of your account.  No penalties are given for early withdrawals, taxes, etc.

For defined benefit plans, the QDRO will contain the formula mentioned above, and the plan administrator will retain that until the denominator is determined (since you may still be working at that employer when you divorce).  Once the denominator is determined, the administrator will determine the share of funds your ex will be entitled to, and once you retire and start earning funds, the account administrator will divert your ex's share directly to your ex.

Note, however, that ERISA does not apply to federal employees.  As a result, federal retirement plans are divided by what is known as a "Court Order Acceptable for Processing" (COAP).  Rules for COAPs are put out by OPM on a routine basis.  Note that TSPs and FERS/CSRS plans have different administrators, so you will need a separate order for division of a TSP and for division of a FERS/CSRS plan.

Finally, the State Department and military each have their own systems separate from the rest of the federal government.  The military will divide military retired pay via an allotment, which can be done if the proper language is included in the Final Decree of Divorce itself.  State Department retirement plans must be divided per State Department rules.

Conclusion

Remember how I said at the beginning of this post that retirement division is far too complicated a topic for one post?  Then do you see how complicated this post was?  Well, I stand by what I said at the beginning - this post is only a basic overview.  Once you get into the details, it gets very muddy.  If you are involved in a divorce and there are substantial retirement assets involved, I cannot strongly enough recommend that you get an attorney.  If you would like to discuss your case with an attorney, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Violating Court Orders in Virginia Family Law Cases - What Happens Next?

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

Introduction

One of the harshest realities that family law clients face is that just because a court orders your spouse, ex-spouse, significant other, etc., to do something doesn't mean he or she actually will - and unless you take action, their violations will go entirely unpunished.  The result of this is that I often get clients come to me with an old order that's been violated for years and ask me why the court hasn't done anything - when in reality, they also have done nothing, and at this point it may be too late.

In today's blog post, I will discuss what to do if your ex is violating a family law order, some considerations to think about, and what can happen as a result of your actions.

Orders vs. Judgments

I have covered before the difference between orders and judgments - including the basic rule that a judgment does not require anyone to do anything, while an order does.  I believe I have also mentioned that in a family law context, almost all orders made by the court are orders, not judgments.  As a result, if you are dealing with a family law ruling - custody/visitation order, an order dividing property, ordering support to be paid, etc., the odds are you are dealing with an order that actually requires each party to take certain actions.  Additionally if you had a property settlement agreement that was incorporated into a court order, you are also obligated by order to follow that agreement.  This means failure to follow the order is contempt of court, and as a result the violator can face some serious penalties as long as the right procedures are followed.

Orders are not self-executing

That all being said, orders do not take care of themselves.  If the parties violate an order, nothing happens unless the other party does something.  There's a practical reason for this - the court simply cannot police its own orders, but also a logical one - if you both don't like an order and can agree to do something differently, why should the court interfere with that agreement?

The result of all of this means, again, if your ex violates the order, it's on you to do something about it - it won't just take care of itself.  There is a slight exception that if your support is being collected by DCSE, DCSE might take action, but it is no way guaranteed that they will.

So, what should you do?

Realistically, the first step to take is to go to an attorney.  There's a decent chance you will get an award of your attorneys' fees as a result of the action you take, but even if you don't, an attorney is going to know best how to compel your ex to comply.  The most common approach is to request that the court issue a "Rule to Show Cause."  This is an Order that requires the other party to appear before the court and defend their actions, and if they cannot do so, they will be held in contempt of court.

What happens if they are found in contempt?

So, if your ex is found by the court to be in contempt, the court has a wide range of options at its disposal.  It can enter a monetary judgment against your ex (meaning you can then garnish his or her wages to collect what you are owed), it can order your ex to pay fines, it can even sentence your ex to jail time.  Most violations of court orders have a maximum sentence of ten days, but failure to pay support can result in a sentence of up to a year in jail.  Frequently if someone is sent to jail for non-payment of support, the court will set a "purge" amount - an amount less than what they owe, but still a significant amount - that they can pay you to at least get out of jail.  You'd be shocked how many people who "don't have the money to pay" find the purge money all of the sudden when facing serious jail time.

Typically, you will also be awarded your attorneys' fees in pursuing the contempt charge, and continuing violations of the order can be re-raised for new contempt charges since continuing to violate the order would be considered new violations.

What if they don't show up?

Of course, all of this depends on their showing up for court on the Rule to Show Cause.  If they don't show up, however, and they were served personally with the Rule (rather than served via a family member or posting on their front door), then the court can find them summarily in contempt based on just your evidence.  Moreover, the court can issue a "capias," which is a warrant authorizing their immediate arrest to be held until they answer for the charges raised.

Right to counsel

An important side note is to understand that, as a contempt proceeding is quasi-criminal and your ex faces potential jail time, if your ex actually is indigent, he or she will be entitled to have the court appoint an attorney for them.  As a result, you cannot use a Rule to Show Cause to take advantage of the fact that your ex does not have a lawyer.

Some considerations

In general, contempt of court is a serious charge, and courts are not going to have patience for someone being brought in front of them for petty violations.  As a result, if your ex shorted you $5 on support one month, that's probably not worth a Rule.  Nonetheless, a series of petty violations may add up to a not so petty violation, and then you can bring a Rule for all of them.

Another consideration is that support has a statute of limitations.  Support automatically becomes a judgment when unpaid, and in 2011 the Virginia Supreme Court ruled that this meant that the 20 year statute of limitations on collecting judgments applied.  As a result, if unpaid support is more than 20 years old, you are out of luck.

Additionally, an order becoming impossible to follow is also a defense against contempt.  So, if you don't go after your ex until they are broke and unemployed, or until the car they were supposed to sign over to you has been destroyed in a wreck, you may be out of luck anyways.

The end result is, while you probably should let minor violations go, when a not so minor violation occurs, you really should not sit on your rights - you need to take action right away.

Conclusion

There are few things more frustrating than sitting there, doing what you are supposed to do, while your ex flagrantly refuses to do the same.  Even more frustrating, though, is that if you do nothing about it, your ex will get away with it.  A lawyer will have the best idea, however, of how to compel your ex to comply.  If you have a family law order that your ex is violating, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Virginia Uncontested Divorces: When the Fighting is Over

Before you read this blog post, please review my disclaimer by clicking the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

[UPDATE:  Some information contained in this blog post is no longer accurate due to subsequent changes in the law.  Please see my changes in the law blog post for 2019 for more information.]

Introduction

Given the entire industry of family law and the horror stories we hear about cripplingly expensive divorces, you might be surprised to learn that most divorces are short, simple and relatively cheap.  Generally speaking, divorce tends to be more likely to go to a contested trial than other areas of litigation, but that's because there are, in many cases, about five areas in which there are potential issues to dispute (grounds of divorce, property division, spousal support, child support, and child custody/visitation) - so while each of those five areas is about as likely to settle as any other type of litigation, settling all five in one case is much more challenging.  That being said, divorce cases being "more likely" to go to trial is not the same as saying divorce cases "generally do" go to trial - they do not.  Most cases ultimately do settle completely - it's just, in my experience, closer to 60-65% of divorce cases, as opposed to about 85-90% of other types of cases.

So, what happens if, despite the hurt feelings and all the emotions that caused your marriage to end, you find yourself in a situation where you and your soon-to-be ex actually are in agreement on the five issues I listed above?  In today's blog post, I hope to cover the basics of obtaining an uncontested divorce in Virginia.

First, Get it in Writing

If you are in agreement on everything, it would be to everyone's benefit to get it in writing.  Technically, you can do this on your own - write down your agreement, each of you signs it in front of a notary public, and suddenly you have a binding marital agreement (see this post for more on marital and pre-marital agreements).  That being said, there are many ways that you can screw up putting this together, so it's always best to have a lawyer draft your agreement (typically referred to as a "separation agreement").

So, why have a signed agreement?  Well, first of all this allows you to get divorced faster if you do not have children (after six months of separation instead of a year).  Moreover, this prevents your spouse from backing out of your agreement at the last minute, as separation agreements are very hard to challenge.  Finally, it provides clear guidance to attorneys, courts and each spouse going forward as to what is supposed to happen - much clearer guidance than you typically get without a written agreement.

Next, Wait the Requisite Time Period

If you do not have children and you have a signed separation agreement, you can get divorced after six months of separation.  If you do have minor children or do not have a separation agreement, you must wait until you have been separated for a year.  In either case, you cannot take further action to get divorced until that time has elapsed.  During the waiting period, however, you can start getting your ducks in a row so you can complete the remaining steps as quickly as possible.

Identify a Corroborating Witness

To complete your divorce you will need someone to "corroborate" your eligibility for divorce.  This should be someone who is not you or your spouse, who knows both you and your spouse, knew when you and your spouse separated, and has visited you in your home at least several times since your separation.  Your corroborating witness can be any adult other than you or your spouse, so it does not matter if they are "biased" (such as a parent, sibling, or adult child).  It is best to talk to your corroborating witness as soon as possible to make sure they are comfortable serving in that role.  Let them know they will not need to come to court and will just be signing an affidavit.

File Your Paperwork in Order

Once the time period for separation has passed, it is time for you to file.  It is very important that you file your paperwork in Order however.  The paperwork you will need to file in court is as follows (and in this order):

• Complaint for Divorce (initiates the divorce suit)
• Acceptance/waiver of service of process and notice signed by your spouse (allows divorce to proceed faster)
• Affidavits for divorce signed by you and your corroborating witness
• Completed Virginia State Form VS-4
• Final Decree of Divorce signed by you (or your attorney) and your spouse

Note that the Acceptance/waiver, affidavits, VS-4 and Final Decree can all be filed at the same time - only the Complaint has to be filed first.  The above order must be followed, however, if you do not file the other documents at the same time.  If you file all of those documents, in that order, and they are completed properly, your divorce should proceed without you or anyone else ever having to appear in court.  You will probably have to wait about two or three weeks for your Final Decree to get in front of a judge, but then it should be signed and mailed back to you (assuming you provided the court with a self-addressed, stamped envelope).  That's it - you are divorced.  Note, however, that under Virginia law you cannot get re-married until 30 days after your divorce is entered.

Why Hire an Attorney

So, the above process probably seems simple enough - so why hire an attorney for it?  Well, because as simple seeming as it is, it is very easy to screw up if you are not familiar with the process.  In fact, I have many clients come to me with cases they filed where their divorce got rejected, and often their case is so messed up by the time it gets to me I have to close their original case and start over from scratch - which is typically more expensive than if they had just come to me in the first place.

So, what's so easy to screw up?  Well, it's easy to have a separation agreement that doesn't actually cover everything it has to, or leaves important matters out.  It's easy to not include all the statutorily required statements in the Complaint, Acceptance/waiver, affidavits, or Final Decree (the affidavits and Final Decree are the toughest since there are things that are required by law to be in them that many people do not know about).  While you can often get samples from your local courthouse, they usually are not perfect, and moreover, they usually do not include sample affidavits, meaning you will have to go to court for what is called an ore tenus hearing, rather than proceed with a simple affidavit.

On top of it all, an attorney for an uncontested divorce is much cheaper than an attorney for contested divorces.  Attorneys typically charge flat fees for uncontested divorces - and depending on the complexity of the case, these fees can be as little as $600 (though $1,200 or so is more common, with up to $2,000 or so for more complicated cases that require drafting and negotiation of a separation agreement along with filing of the divorce itself).  Compare this to the $15,000 to $75,000 that a typical contested divorce runs (with atypical contested divorces I have heard of running as high as $250,000 to $500,000 in legal fees) and you can see how an uncontested divorce is a much cheaper option.

All in all, for the security that comes from having an attorney handling your uncontested divorce, the cost truly is not that high, and is certainly worth it.

Conclusion

Most divorces in Virginia are uncontested.  They require neither protracted litigation, nor even an appearance in court.  Hiring an attorney is the simplest way to make sure that your uncontested divorce runs as smoothly as possible.  If you are involved in a divorce where all matters are actually resolved (or look to be resolved fairly easily), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!

Defining Marital Property in Virginia

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

Introduction

One of the most important and well-known topics that comes up in divorce law is the division of property.  It is also a topic that I have almost completely avoided on this blog.  It's not that I don't think it's important - it most certainly is important.  Rather, I have had trouble coming up with ways to talk about it while keeping blog posts on the topic of a reasonable length.  You see, I can go on and on about the weird rules of spousal support, or how you calculate child support, but in my personal opinion, nothing about divorce law is more complicated than the laws surrounding the division of property.

Virginia is an "equitable division" state.  We are also not a "community property" state.  What this means is that we do not consider all property owned by married couples to be eligible for division, and when property is divided, there is no presumption that it should be divided 50/50.  As a result, there are very complicated statutes on property division, and very, very many volumes of case law interpreting it.  Today, I've decided to start addressing some of these issues, and to do so I'm starting at the beginning - what property actually gets divided?

Today's blog post will give a brief overview of the meaning of marital property - the property that gets divided in a divorce.  Even this is a complicated concept with volumes of case law, so today's post will remain fairly basic.

Marital Property, Separate Property and Hybrid Property

So, as you can probably guess from the names, marital property is property that is considered to belong "to the marriage," while separate property belongs "to the person."  Marital property is divided in a divorce, separate property is not - it stays with its owner.  Hybrid property is property that is itself both separate and marital, so only the marital portion of hybrid property is divided.

All property you own prior to the marriage is generally considered your separate property.  Similarly, any property you acquire after you separate is also considered your separate property.  Some examples of this may be a retirement account that you owned before you were married - it is your separate property.  A bank account that only has money in it that you earned after you separated - also your separate property.

All property you acquire during the marriage, however, is generally considered to be marital.  Money you earn during the marriage, for example, is marital property, and the things it purchases are marital property.

But what happens when you mix separate and marital property?

Transmutation vs. Tracing

The general rule is that if you mix separate and marital property, the whole property becomes "transmuted" to marital property.  There is an exception, however, where the owner of the separate property can "completely trace" his property.

I will give two examples.  If you had a bank account before marriage but then started depositing your marital income into that account, the account will become marital.  Money is fungible, and as a result, there is no realistic way to figure out what portion of the bank account is now marital and what portion is not.

On the other hand, if you use an entirely separate bank account to pay half the down payment on the house, and you can prove that the money was, in fact, used for the down payment, you now know what share of the initial equity in the house was separate, and can use that to calculate the portion of the house that remains separate.

Marital Contributions to Separate Property

There is another rule of some importance to know as well.  If you bring separate property into the marriage, but then contribute marital property to it, or either party makes significant efforts to assist it during the marriage, and the property has a "substantial" increase in value, it might become hybrid property.  There are several situations where this comes up - for example, a separately owned house brought into marriage where substantial work and improvements are then performed on it during the marriage.  A recent Virginia Supreme Court case also counted as hybrid a pre-marital retirement account to which no contributions were made during the marriage, but on which the spouse who owned it had done a great deal of work in terms of active trading to increase its value during the marriage.

Retirement Plans

Now, I've alluded to retirement plans a couple of times, but they are one of the harder bits of property to define, so I do want to address that as well.  Retirement plans come in two forms - defined contribution (such as an IRA or 401k) and defined benefit (such as a pension).  Both are considered property in divorce, not merely future potential income, although payments from these plans can be considered income for the purpose of determining support (the interplay between income for support and income for property division is a whole other issue probably worthy of its own post).  As a result, both are divisible, even if you are nowhere near retirement age yet.

For defined contribution plans, the "marital share" is generally considered to be all contributions made during the marriage, and the earnings and losses thereon.  Contributions (and their earnings and losses) from before the marriage and from after the separation are generally considered a separate portion.

For defined benefit plans, there are a number of approaches that can be taken to determining the marital share, but the most common I have seen is the fraction formula.  In the fraction formula, the percentage of the defined benefit plan that is considered marital is equal to an equation defined as x / y * 100 (you can leave out the 100 if you are just going for a decimal fraction rather than the percentage).  In that formula, x is the number of months you were employed by the employer offering this plan where your month of work was credited towards your plan and you were married and not separated.  For the denominator, y is the total number of months of work credited towards your plan as of the date you retire, whether married or not.  Usually x will be defined by the date of divorce, but y will not be, and that's alright - y is not expected to be known yet as of the divorce date and the division can still be done with y unknown.

Now, it is worth noting that unlike the other areas of law in property division, there is a specific rule regarding division of retirement accounts.  Specifically, once you have determined the marital share of a retirement plan, the non-owning spouse cannot be awarded more than 50% of the marital share of a retirement account.  This was done to prevent people from potentially having their retirement savings wiped out by a divorce.

Restricted Stock Options

Another complicated area of property law is restricted stock options - these being stock options frequently awarded by employers which cannot be exercised until a certain date.  If that date is after the separation, then you don't really have these options before the separation, so there is some debate in the law about whether they are marital or not.  The general rule as it stands right now is that if they were earned during the marriage (so, for example, they were given as a bonus for work done during the marriage), they are marital, regardless of when they vest.  If, however, they were given by employers not as compensation for work done, but rather as merely an incentive to continue working for that employer, then they are separate if they vest after the separation date.

This is an area of law that is still evolving, however, and I cannot say the above is the final word on the matter.

Separate Property Acquired During the Marriage

Now, there are some exceptions to the rule that property acquired during the marriage is marital that are worth discussing.  The first exception is that property acquired during the marriage solely with separate property (so, for example, a TV bought with money from a separate, pre-marital bank account) is still separate.  The second is that anything inherited during the marriage is separate property, unless the inheritance is from a will that specifically bequeathed the inheritance to the couple, rather than just one of the parties.  The third is that any gifts that are given by someone other than the person's spouse to the person during the marriage also remain separate property.

Ownership Presumptions

I'm going to wrap things up here because this post is already longer than I'd like, but I do want to note that the law does have some presumptions regarding ownership that are worth remembering.

First and foremost, any property that is jointly owned is presumed to be marital.  You can rebut this presumption with some strong evidence, but it is fairly unusual that a court will consider something jointly owned to be entirely separate - at best, you will sometimes get a finding of hybrid property.

Second, the law also presumes that property that is separately titled is separate.  That being said, this presumption is much easier to rebut, because as soon as you show that the property was actually acquired during the marriage, the presumption switches to it being marital property.

Nonetheless, it is important to know these presumptions because of their impact on the burden of proof.  If property is jointly owned, the party trying to prove separate ownership has the burden to prove it.  If the property is separately owned, the party trying to assert marital ownership has the burden to establish that it was acquired during the marriage, but then the other party would have the burden to establish that it was still separate property.

Conclusion

The law surrounding property division is, in my opinion, the most complicated part of property law.  Consider that this entire blog post only even talked about what property gets divided - we didn't even touch how that division is actually done - and we didn't even talk about all the topics in that arena.  This is one of the biggest reasons why you should get an attorney if you have any property at all that needs to be divided.  If you are involved in a divorce and have property to be divided, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our consultations are free for up to half an hour!