One category of assets that causes much confusion for clients in the context of dividing property and debts in a divorce action is retirement benefits.  The term “retirement benefits” includes defined contribution plans such as 401(k) plans and profit sharing plans, as well as defined benefit plans such as pensions. 

Section 20-107.3(G) of the Code of Virginia addresses how these benefits are to be divided: “Upon consideration of the factors set forth in subsection E, the court may direct payment of a percentage of the marital share of any pension, profit-sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, which constitutes marital property and whether payable in a lump sum or over a period of time. The court may order direct payment of such percentage of the marital share by direct assignment to a party from the employer trustee, plan administrator or other holder of the benefits. However, the court shall 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.”

But, not all retirement benefits are created equal.  For instance, although most types of retirement benefits are divided using a court Order called a Qualified Domestic Relations Order (“QDRO”), the content of those QDROs differs for defined contribution plans and for defined benefit plans when the owner of the retirement benefit is (or was) an employee of a private company.  On the other hand, the retirement benefits of federal employees are divided by a court Order called a Court Order Acceptable for Processing (“COAP”).  The retirement benefits of military personnel (retired or active duty) are divided by a different type of Order.  Over the course of the next few posts, I hope to shed some light on this very complicated area of divorce law.

As a domestic attorney, I hear many different stories as to why individuals make their way to my office and, eventually, end up pursuing a divorce.  From family to family, the details differ, but I have reached the conclusion that most divorcing people have experienced a disconnect with their spouse in at least one of four main areas (in no particular order): how to manage money, how to raise their children, how to interact with their respective extended families, and their intimate relationship.  At this time of year, when many are thinking about how to improve during the new year, this seems to be an important observation.  If more couples acknowledged that these four areas were potential areas of discord and made a conscious effort to be proactive with regard to them, I am almost certain that I would be out of a job.

I have to admit that, even after years of being a domestic attorney, it still surprises me when a potential client who has been married for a number of years tells me that he or she has a fundamentally different philosophy with regard to one of these issues than his or her spouse and that this is why they need to be divorced.  For instance, a few days ago, during an initial consult, a female potential client told me that she could not stay married to her husband because he did not want any children and she very much did.  During the consult, I wondered to myself: “Why didn’t you and your then-fiancé talk about this before you married?”  It seems to me that, if she was determined to have children and her soon-to-be husband clearly did not want them, this difference of opinion would be a deal breaker.  But, many either do not think, or chose not, to have these conversations in advance of getting married.  And sometimes people do have these conversations before the wedding, realizing that there may be divergent opinions, but, for various reasons, still proceed with the wedding.

In the end, I think the message is clear: a successful couple will have these conversations before they marry and will make sure they are on the same page; then, they will continue to revisit these issues periodically throughout their marriage to stay that way.  However, this is not to say that it is too late for those who are already married.  If my years as a divorce attorney have taught me anything it is that open communication is the key to any relationship.  I truly believe that many issues can be overcome if they are identified as issues early on, and if a couple then makes an honest commitment to work through them.

In recent years, many divorcing couples have chosen mediation as an alternative to litigation. Mediation involves many of the same procedures as litigation, but is geared to produce less hostility and lower the costs for the parties. Many mediators in Virginia have been properly trained for this process; however, some mediators have not. So, be vigilant and ask questions.

            The Virginia State Bar Association can offer referrals to a number of qualified mediators, as well as a list of attorneys who can represent clients in the mediation process and those that specialize in domestic relations matters.

            Many lawyers in our area are also collaboratively trained, another type of alternative dispute resolution to litigation.  I am collaboratively trained, as is Jace M. Padden of our office. The collaborative process allows a couple to end their marriage with dignity and respect and is a far more preferable method to litigation, provided both parties are emotionally capable and committed to the process.  

        Read Jace Padden's blog about the process and advantages of collaborative dispute resolution in more detail. 

The holiday season is perhaps the most difficult time of year for clients going through a divorce (or even those who have previously gone through one), especially if the client has a minor child or children.   Like clockwork, as the major holidays come and go, so too does the barrage of phone calls to my office regarding the holiday visitation schedule.  During this sometimes already stressful time of year, disputes over the holiday visitation schedule are often what put domestic clients over the edge.

So what can a domestic client do to lessen the stress associated with the holiday season (at least from the perspective of the holiday schedule)?  Here are a few tried and true suggestions: 

1.         Negotiate a thorough, detailed schedule at the beginning.  Often, clients are in a rush to negotiate and sign their Settlement Agreement or initial Court Order, and, in so doing, they skim over important details such as what time holiday exchanges are to occur or where holiday exchanges should take place.  Some clients are so eager to complete these documents (or are so convinced that they will maintain a good “working” relationship with their soon-to-be-ex) that they resort to the almost always fatal “the parties shall equally divide the holidays on an annual basis pursuant to a mutually agreeable schedule” (or some variation thereof).   While I have had clients who are able to work out the schedule by themselves year after year, unfortunately, most parents are not able to do this.  As a result, from my perspective, it is almost always advisable for a client to start out with a detailed, default schedule that the parties can then agree to vary from, rather than to agree to a loosey-goosey schedule (or none at all).      

2.         Discuss annual holiday plans early and often and put any deviations in writing.  If you are one of those clients who have the “divide the holidays as the parties mutually agree” language, or if you and the other parent simply wish to deviate from your written schedule, the most important things to do are to start discussing the holiday schedule early and to put any deviations in writing.  By commencing the “negotiations” early, any disagreements are more likely to be worked out before the holiday actually arrives.  Further, putting the outcome of any discussions in writing (email is really great for this!) reduces the likelihood that you’ll drive to Virginia Center Commons at 5:00 p.m. on Christmas Day to exchange little Johnny only to be met by an empty parking lot.

3.         If the schedule truly isn’t working, take legal steps to have it changed.  If, each year, the schedule in your existing Settlement Agreement or Court Order causes screaming and/or crying, it may be time to meet with a domestic attorney to investigate having the schedule modified.  After all, your children (and you) deserve to have happy holidays!    

As a lawyer who practices in both the areas of domestic relations and estate planning, I can’t help but think about the interplay between the two.

Recently, I had a potential client who came into the office wanting to divorce her husband, but not wanting to do without his money.   She relayed to me that, several years before she and her husband had started having marital problems, her husband had executed a Durable General Power of Attorney in favor of her (i.e., her husband had executed a document which gave her the almost unfettered ability to transact on his finances).  This potential client wanted to know if she could go down to the local bank and use the Power of Attorney to withdraw all of her husband’s money (which was held in accounts that did not have her name on them) and what implications, if any, there could  be if she later chose to file for divorce.  

While this woman was not yet a party to a divorce action, her situation gives rise to an important point relating to the intersection between domestic relations and estate planning: you must always trust the person whom you have named as your agent under a Durable General Power of Attorney and, if and when that trust ends, you need to remember to revoke your Power of Attorney.  Revocation may be as simple as tearing up the Power of Attorney.

Nowhere is it more important for a person to revoke his or her Durable General Power of Attorney than in the context of a separation.  Section 26-81 of the Code of Virginia provides that an agent’s authority under a Power of Attorney terminates when an action for divorce or annulment of the agent’s marriage to the principal (i.e., the person who executed the Power of Attorney) is filed or in the parties’ legal separation, but it does not protect two parties before a Settlement Agreement is signed.  As a result, if your family circumstances are bad enough that you are visiting a lawyer to obtain information and guidance about a separation or divorce, you  may want to strongly consider revoking your Power of Attorney as soon as possible to avoid any further difficulties.

Technology can be wonderful.  New inventions often make our lives easier or more entertaining (or both).  Technology, however, can have negative attributes as well.  As members of our current society, we must educate ourselves equally on the benefits and pitfalls of the newest devices and trends.

Nowhere is this clearer than in the context of family law, especially with regard to divorce and custody proceedings.  In today’s technology-laden world, there have been a number of inventions (e.g., email, text messaging, EZPass, Facebook) that have unintentionally come to the aid of the average person going thru a divorce (as well as his or her often reluctant attorney).  There have also been a number of inventions that have served to “put the nail in the coffin.”  Indeed, depending upon whether you are the plaintiff or the defendant in a divorce action, technology may be a blessing or a curse.

One piece of technology that has very recently caused a lot of buzz in the divorce world is the “Find My Friends” application on the new iPhone 4S.  “Find My Friends” was intended to allow its user to track the location of those friends who have agreed to allow the user access to this information.  However, according to recent Internet chatter, “Find My Friends” also allowed a husband who suspected his wife of cheating on him to surreptitiously “verify” that she was engaging in an inappropriate relationship, or at least lying to him about where she was going from time to time.  He gave her a new cell phone with the application already loaded on it (and enabled).  When the wife left the house, the husband was able to track her location, unbeknownst to his spouse.  Now, he has screen shots which, apparently, he will attempt to use in Court to corroborate her visits with an alleged paramour.  The husband was so pleased with his “success” with the application that he posted what happened on a blog and thanked iPhone and “Find My Friends.”

While I suspect there might be issues with the admissibility of the husband's "evidence" (and maybe even potential criminal implications for his own behavior), I think at least one message is clear: educated use of technology is a must.  After all, one may not want others, including a divorce court or, better yet, the entire world, to find his or her friends.

Our laws which govern spousal support were modified on July 1, 1998 in Virginia. The Court can now award rehabilitative spousal support for a period of time based upon certain factors such as the education, training, employment history, decisions made regarding the care of the children, and physical and mental health of the party seeking support. The parties can also contract, in a Property Settlement Agreement, to any arrangement of spousal support they desire.  If the parties do not reach an agreement regarding spousal support, the Court can set support for a period of time or until the death of one of the parties, remarriage or cohabitation pursuant to Virginia law.

On the other hand, child support is governed by statute and is based on the gross incomes (real or imputed) of both parents. If one parent is earning substantially less than he or she could reasonably earn, additional income may be imputed to that parent. The child support guidelines are designed to provide a child with the amount of support needed to provide for his or her food, shelter, clothing, medical needs, etc. based upon the parents’ joint gross income. Generally, payment of child support extends until the child graduates from high school or reaches the age of nineteen, whichever occurs first.

          Often in a divorce action, the departing spouse, remorseful, may be eager to end the marriage. In his or her eagerness, this spouse will often make a more than generous offer to settle the domestic issues. In these cases, I often urge my client to look to the future, not to the past, and (if the agreement is appropriate) to accept the offer. Many times, the quicker the division is reached, the better. Settlement allows emotions to calm down, and the bulk of the family financial resources to remain with the family rather than be spent on attorneys and other costs of court such as expert fees, court reporter fees and the like.             

        Once the Property Settlement Agreement has been thoroughly reviewed and executed by the parties, the Agreement will stand unless a spouse can prove that he or she signed the Agreement under fraud, coercion or duress. The legal theories of fraud, coercion and duress are difficult and costly to prove. The Property Settlement Agreement is much like marriage - - not to be entered into lightly or ill advisedly. Again, my advice is that both husband and wife have separate legal counsel to prepare and review the Agreement before execution.

In my last post, I described a list of potential avenues to consider when seeking to preserve or obtain evidence which might corroborate that a spouse is cheating.  In that post, I also tried to emphasize that any evidence-gathering should be done lawfully.  After all, while striving to corroborate one crime (yes, adultery is a crime under Virginia law, even though it is very seldom prosecuted), we don’t want a client or potential client to commit another one.  What follows are some points to consider to “keep it legal:”

1.         It is lawful for you to duplicate your own cell phone records.  Accordingly, if you and your spouse have a joint cell phone account or his or her cell phone is on your account, you can lawfully copy the records.  You can also lawfully copy records from his or her separate account if they are left lying around or are stored somewhere in your jointly-owned house.  

2.         It is lawful for you to duplicate emails that are left open on a family computer.  Accordingly, if your spouse leaves his or her incriminating emails up on the screen, they are fair game.  The same is true if your spouse has previously shared his or her password for their account with you.

3.         It is lawful for you to duplicate the Internet search history on a family computer.

4.         It is lawful for you to duplicate your own credit card statements.  Accordingly, if you and your spouse have a joint credit account or he or she is an authorized user on your account, you can lawfully copy the records.  Similarly, you can also copy any credit card statements from his or her separate account if they are left lying around or are stored somewhere in your jointly-owned house.

In the end, if you have questions about the legality of your methods of evidence-gathering, you should consult with an attorney before engaging in potentially unlawful behavior.  It is always better to be safe than sorry, even when dealing with such an emotional issue as a cheating spouse.  

Perhaps one of the most devastating things a spouse could discover about his or her partner is that he or she is cheating.  Obviously, even the thought that a spouse might be committing adultery is an emotional issue, which is best addressed by counselors and other mental health professionals, rather than attorneys.  However, if you believe that your spouse is participating in an extramarital relationship, from a legal perspective, you must try to stay calm, as there are certain things you can do to strengthen your case for a fault-based divorce. 

From a legal perspective, the biggest issue to consider is preserving (and, potentially, obtaining) any evidence which may corroborate that your spouse is engaging in an extramarital relationship. What follows is a list of potential avenues to ponder:    

1.         Phone Records:  A cheating spouse’s phone records will often show an increased amount of calls to a certain number or numbers, and/or an increased amount of text messages.  If you lawfully have physical access to your spouse’s phone records, you should print them out as far back as you are able to go.  Additionally, if you lawfully have access to any text message content, you should replicate that as well.  

2.         Emails:  A cheating spouse might engage in sexually explicit conversations with his or her paramour.  If you lawfully have physical access to your spouse’s email account, you should print out any incriminating email exchanges.  

3.         Internet Search History:  A cheating spouse may also search for potential paramours using the Internet.  If you have lawful access to your spouse’s computer, you might consider reviewing his or her search history to locate any incriminating content.    

4.         Credit Account Charges:  A cheating spouse may use his or her credit card to finance his or her extramarital relationship.  If you lawfully have physical access to your spouse’s credit card statements, you should print them out as far back as you are able to go.

5.         Private Investigator:  If you feel as though your spouse is cheating, if all else fails, you might consider hiring a private investigator.  Just make sure to obtain a referral from someone you trust (including your attorney), as not all private investigators are created equal.