What Is Collabrotive Divorce?

           Divorce can be devastating on your family. In an effort to maintain some peace and civility many families have decided to look towards collaborative divorce as an alternative to litigation. Collaborative divorce involves an effort by both parties to work together with their attorneys in the best interest of their family. This includes working together to discuss child custody, monetary, and property issues. Along with your lawyer, your process will be aided by helpful professionals that can evaluate the situation and help assess any areas of dispute. This often includes health professionals, financial aides, or divorce coaches who help you make decisions on some of the toughest choices involved in divorce.

In the collaborative process parties sign a Collaborative Participation Agreement that allows for voluntary, open discussion of all relevant matters. The parties consent to work outside of the courtroom with the agreement if either party files any contested court proceeding, it will nullify the collaborative effort and the family will need new lawyers and other professionals.

Often the question is whether collaborative divorce is right for you. The International Academy of Collaborative Professionals suggests that when determining whether the collaborative process is appropriate for your matter, consider if the following values are important to you: 

• I want to maintain the tone of respect, even when we disagree.
• I want to prioritize the needs of our children.
• My needs and those of my spouse require equal consideration, and I will listen objectively.
• I believe that working creatively and cooperatively solves issues.
• It is important to reach beyond today's frustration and pain to plan for the future.
• I can behave ethically toward my spouse.
• I choose to maintain control of the divorce process with my spouse, and not relegate it to the courts.

If these values are something that you hold dear - then collaborative divorce may be the route for your family. If you are interested on embarking on the collaborative divorce process, please feel free to call our office to schedule an appointment so that we can answer any questions you have and better inform you of your options.

Sources: http://www.collaborativepractice.com/

Did You Know? Is interference with parental rights recognized as a tort in Virginia?-a clarification

Did You Know? Is interference with parental rights recognized as a tort in Virginia? — A clarification

We are publishing this revised version of last week’s “Did You Know?” email to clarify that the background information in our earlier email consists of allegations, not findings of fact by the Virginia Supreme Court. The factual allegations in the underlying complaint are set out in the Court’s opinion in order to frame an answer to the certified question. This case is still pending in U.S. District Court for the Eastern District of Virginia. The allegations are accepted as true in the opinion, because the certified questions of law arose out of a motion to dismiss for failure to state a claim under FRCP 12(b)(6).

In Wyatt v. McDermott, a case published April 20, the Virginia Supreme Court recognized for the first time the tort of interference with parental rights, in the context of an adoption. In the U.S. District Court suit, the birth father alleges that he was unaware of plans for adoption made by the child’s mother. The Virginia Supreme Court decision answered two questions certified to it by the U.S. District Court for the Eastern District of Virginia:

1. Whether the Commonwealth of Virginia recognizes tortious interference with parental rights as a cause of action.

2. If so, what are the elements of the cause of action?

While there is no statutory basis in Virginia for the tort of interference with parental rights, the Virginia Supreme Court evaluated the common law basis for the tort, finding that this cause of action was valid both at common law and today because “rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded the parent-child relationship.” Although wrongful interference with custodial rights is codified in Virginia in § 18.2-49.1 as a criminal offense, the statute does not provide any civil remedies.

The elements of the tort are: (1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent’s parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent’s consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3) the outside party’s intentional interference caused harm to the complaining parent’s parental or custodial relationship with his/her child; and (4) damages resulted from such interference.

The burden of proof is by preponderance of the evidence. The Court also discussed the availability of potential affirmative defenses by the defendants in these cases if there is a good faith argument that the child’s physical, mental, or emotional health is in jeopardy.

The information is derived from Virginia CLE^® editorial staff research, retrieved April 27, 2012 from http://www.magnetmail.net/actions/email_web_version.cfm?recipient_id=647096301&message_id=1923772&user_id=VACLE&group_id=822678&jobid=10032192

What are the Grounds for An “Absolute” Divorce?

          One of your first considerations after deciding that you want an absolute divorce (sometimes referred to as a divorce a vinculo matrimony) from your spouse is whether you have a ground for divorce.  “Grounds” for divorce are “reasons” for divorce that have been approved by the legislature as sufficient to permit termination of the marriage.  In Virginia, divorces are categorized as having been based upon Fault or No-Fault. 

No-Fault Divorce

          A no-fault divorce is a voluntary separation which means that the spouses mutually agree to live separate and apart.  There are two different categories, with differing minimum periods of separation,  in order to satisfy a no-fault divorce statute: 

·         If the parties have no minor children and have resolved all of their divorce related issues in a written separation agreement, then they need only have lived separate and apart without cohabitation, and with the intention of the separation being permanent for six months before they are able to file for divorce on this basis. 

·         If the parties have minor children or do not have a written separation agreement, they must have lived separate and apart without cohabitation during which one of the parties intended the separation to be permanent for at least one year. 

Fault Divorce

          A fault divorce involves meeting one of several grounds for divorce in order for the court to consider granting the divorce.  The fault-based grounds for divorce include:

·         Adultery [there is no waiting period for filing a divorce based upon adultery];

·         Conviction of a crime - [In order for a crime to constitute a ground for divorce the spouse must have committed a felony in any state and have been ordered to serve more than twelve months in a penitentiary or penal institution.  Cohabitation must not resume after receiving knowledge of the spouse’s confinement or the grounds for divorce are lost.]

·         Cruelty [there is a one year waiting period for filing a divorce based on cruelty;

·         Desertion - [Desertion, or abandonment, has three requirements that must be met.  First, the desertion must have continued for twelve uninterrupted months.  Second, it must be willful and malicious.  Third, it must be beyond any reasonable expectation of reconciliation.  There are two types of desertion.  Actual desertion involves the spouse voluntarily leaving and having no plans to return to the marital residence.  Constructive desertion involves one person leaving the relationship, not necessarily the home.  An example of constructive desertion is ceasing to perform the household duties and “shutting out” the other spouse or making the continuation of the relationship intolerable:

·         Insanity - [the insanity ground for divorce requires the spouse to be judged permanently and incurably insane and confined in an institution or hospital for a minimum of three years before filing]; and

Bigamy [there is no waiting period for filing for divorce based upon bigamy].

Need To Relocate Outside of Virginia?

            The Virginia Court of Appeals recently reversed the trial court in Garner vs. Ruckman (VLW 011-7-371 (UP) when the Circuit Court erroneously applied an “actual harm” test instead of the “best interest of the child” test to revoke mother’s custody when she relocated to Pennsylvania with the child.  Mother had sole physical custody, and father had weekly visitation, following the parties’ divorce based upon their mediated agreement.  However, within months of the divorce the mother was faced with financial difficulties.  Her income had declined and father was not paying child support regularly.  She feared eviction and did not have a dependable car.  To improve her financial position and better support her family, Mother moved approximately two and a half hours away to her mother’s home in Pennsylvania.  On father’s motion, temporary physical custody was awarded to father by the Juvenile and Domestic Relations District Court for “school purposes”.  The JDR court eventually ruled that the mother’s move was not in the child’s best interest and awarded physical custody to father.  When the mother appealed to the Circuit Court, the Circuit Court determined that there was no harm to the child by being in father’s custody, and that the mother’s move did not benefit the child.

            The Virginia Court of Appeals disagreed – finding that the mother’s evidence did prove that the relocation was in the best interest of the child.  In addition, it found that the Circuit Court had not show that it considered all statutory factors in assessing the child’s best interests. 

            The Virginia Court of Appeals noted that the mother had been the child’s primary custodian since birth; the child had a close relationship with his half brother and two stepsisters; that the mother had, since moving to Pennsylvania, remarried and was now a stay-at-home parent; and that the mother expressed concerns about the child’s safety when with the father, stating that he did not use a booster seat and did not seek medical attention when the child had a nosebleed and cold sores on his mouth.  In addition, the record indicated the father had a girlfriend, a history of instability, a criminal record, a previous drug addiction, an anger-management problem, and was unemployed.

            Other important factors considered were that the mother had encouraged the child’s relationship with his father by agreeing to expand visitation in 2010, despite the fact that the father denied mother the chance to see the child Christmas Eve and Christmas Day.  The Virginia Court of Appeals pointed to case law that suggests that judges may consider benefits provided after the relocation as also working to the child’s benefit.

            If you or someone you know is considering a relocation outside of the Commonwealth of Virginia with a child or children, be sure to consult with an attorney specializing in child custody law to avoid the lengthy disruptions in your children’s custody that were experienced by this family!  Attorney Lori A. Michaud has been practicing family law for over 13 years!

Did You Know...That You Can Delegate Your Visitation When You Deploy?

            New legislation went into effect July 1, 2011 in Virginia, allowing a court to delegate the visitation rights of a military parent who has been deployed on active duty to a family member, including the stepparent that enjoys a “close and substantial relationship” with the child.

            The Court may enter an order granting all or a portion of a non-custodial parent’s visitation to a family member, if you had visitation rights with the child prior to your deployment or may provide visitation to such family member, if you had physical custody of the child prior to your deployment and the non-deploying parent or a family member of the non-deploying parent is awarded physical custody during your deployment.

            The order delegating or providing visitation rights to a family member pursuant to this law does not create a separate right to visitation in the family member to whom visitation rights are delegated or provided.  You may at any time, and non-deploying parent or guardian may upon a showing of a material change in circumstances, petition to rescind the order.  The delegated visitation to the family member is terminated by operation of law once you send written notice of your return.

            No longer do the bonds that your child has established with other family members, including stepparents, need be broken because of your deployments!

Changes you need to make to your important documents to effectuate your Separation Agreement.

You are not done with your divorce related tasks just because you and your spouse have signed a Separation Agreement.  There are many important documents that need to be reviewed and revised after the Separation Agreement is signed to effectuate the terms of your agreement.  These can include life and health insurance policies, pension documents, Deeds, Wills and other important legal documents.  Failure to make the changes to these documents contemplated by your Separation Agreement can have serious consequences.  The 4^th Circuit Court of Virginia has refused to enforce waivers contained in a Separation Agreement – even after the Separation Agreement became part of a Final Decree of Divorce -- because the insured did not change her beneficiary designation before she died.  This resulted in her ex-husband being permitted to keep the life insurance proceeds paid out by wife’s ERISA-approved plan despite his signing of a separation agreement waiving any claim to benefits from wife.

            In Boyd v. Metropolitan Life Insurance Company, the wife had worked for an airline before her untimely death.  Her employee life insurance plan allowed her to change her beneficiary at any time by sending a signed, dated written request to the carrier.  The plan made clear that the carrier would disburse benefits to her estate, but it did not specify any procedure for beneficiaries to follow in order to waive their claims to benefits.  Wife and husband separated six years after wife designated husband as her beneficiary on her plan.  During the following divorce, a South Carolina Court entered their separation and property settlement agreement, which included the waiver “the right to receive proceeds, funds or property as a beneficiary under any life insurance policies.”  However, the wife never changed the name of the beneficiary and the plan’s carrier paid the proceeds to husband.  The appellants filed suit, and later, this appeal.

            The 4^th Circuit has made it very clear that plan documents, not the divorce decree, are controlling on disbursements under a pension plan.  So don’t forget to change YOUR beneficiaries!

Keeping Your Legal Fees and Expenses Under Control

            Fees are a sensitive area to discuss for both the client and the lawyer.  However to ensure that your case is provided the attention it deserves and that you are comfortable about the basis for the agreed upon fee, it is important that you are informed about the types of fees and expenses you are likely to incur.

            Below are 5 tips to keeping your legal fees under control:

·         Utilize a counselor, if needed.  It will be less expensive for you to seek emotional counseling and be able to vent it you seek a licensed professional counselor.  Seeking counseling does not negatively affect your case.  In fact, the courts have actually come to look favorably on those who are seeking to help themselves.

·         Plan your phone calls.  Remember you are being billed for your time with a lawyer over the phone.  Make a list of questions that you have prior to calling and check the items off as they are answered.

·         Establish a relationship with office staff.  The office staff is there to serve you.  If you simply need information regarding your case, it is more efficient and less expensive for you to utilize the non-attorney staff, who should know when the attorney’s input is needed to answer your questions.

·         Utilize the firm website.  If the firm has a website, use it.  In today’s world, many firms have taken the time to develop and continually maintain a website.  Utilizing their website, may answer many of your questions regarding the general operation of the firm or even general legal questions.

·         Be cooperative.  To best serve you, your attorney needs to know everything that is asked as it relates to your case.  It may difficult or even embarrassing at times, but by divulging to your attorney, they can best protect you and may be able to prevent the other side from revealing in open court or in a deposition points that you wish to remain confidential.  Remember your communications with your attorney are confidential, meaning that what you tell us within bounds is legally protected information unless you state otherwise.