Hers, Mine and Ours

June 5th, 2017

Generally, if you were married when you acquired it – whatever the item is – it is marital property. There are exceptions to this rule, but not many. There may be different rules in other states, but this is the rule in Virginia. In other words, even if you have been working hard, received your wages and bought a “toy”, a motorcycle, for example, from your own paycheck, “half” of that motorcycle is still the other spouse’s.

Is it only in your name? Well, you’re married, so that title is a legal fiction. A Court may act much the way a Trustee does in a Bankruptcy, and change the title of the item, just so it is split equitably. “Equitably” means “fairly”, not necessarily 50:50. For example, the Court might look at why you are getting divorced, that is, the grounds for your divorce and distribute the property 30:70. In fact, the Court considers 11 factors when dividing property fairly.

This Rule is why, when an attorney hears you are getting married, he immediately mentions a Prenuptial Agreement. It is one of the few ways to preserve property that does not become “hers, mine and ours”.

A note about retirement. Retirement, earned during the marriage, is considered marital property, even if it is paid as monthly income. Generally, the Court awards half the “marital portion” of a spouse’s retirement. The “marital portion” is the total amount of retirement you earned during the marriage. The Court uses a special Order that allows companies to apply this formula to retirement accounts so that they are split fairly. Again, a retirement account is treated like a piece of property, and the general rule of “hers, mine and ours” applies to it.

Bankruptcy for Creditors 101

May 30th, 2017

Ever loaned money to a friend? Are you a landlord or have a roommate? Does someone pay you child or spousal support payments? You may not think of yourself as a “creditor”, but if the person who owes you money files bankruptcy, you will be a creditor in bankruptcy.  Here’s 3 things to know when that person files bankruptcy:

 

  • STOP in the Name of the Automatic Stay!

The moment a person files bankruptcy, an automatic stay is issued and all collections activities must come to a screeching halt.  That means no phone calls, no notices, no court actions, no texts or tweets or communications of any kind to the debtor about any contract or debt owed before the bankruptcy was filed. Although the stay has limitations, violating the stay is a punishable offense, so it’s best to consult with an attorney before taking any action.

 

  • Know the Chapter

The most common bankruptcy is Chapter 7, in which the debtor’s non-exempt assets – if any – will be paid to their creditors.  In a Chapter 13, the debtor makes monthly payments under a 3-5 year plan.  In all Chapter 13 and Chapter 7 – Asset bankruptcies, creditors must file a proof of claim to be paid through the bankruptcy.  Mark the claim deadline on your calendar as soon as you learn there’s a bankruptcy so that you don’t miss it!

 

  • Know the Debt

Is your debt secured? Are there monthly payments that will accrue after the petition is filed? Can the debt be discharged? These factors will determine your rights as a creditor. If your debt is secured, your lien may survive the bankruptcy.  If a debtor fails to make ongoing monthly payments, the court may give you relief from stay to collect the debt.  Some debt may not be discharged in a bankruptcy.  That means you will be allowed to pursue the debt after the bankruptcy is over.  Understanding how the bankruptcy will affect your debt can help you plan for protecting your rights as a creditor.

Stop in the name of bankruptcy graphic

 

DIY Separation Agreement: Don’t Let Your Divorce Become a Pinterest Fail

March 23rd, 2017

DIY Divorce graphicOften when someone comes in to discuss a divorce, he or she will want to say that the divorce is “uncontested”.  It is no secret that an uncontested divorce costs a great deal less than a contested divorce.

Unfortunately, to have an “uncontested” divorce, you and your spouse must be in agreement as to all the divorce issues: fault grounds, spousal support, equitable distribution and the child issues of custody, visitation and child support.  If you and your spouse disagree about any one of these items, you do not have an uncontested divorce… yet.

To facilitate an uncontested divorce, where you and your spouse can come to an agreement, I usually recommend that you and your spouse negotiate and sign a separation agreement, specifically one drafted by an attorney.  Why an attorney?  In truth, if you and your spouse were to agree upon terms, written on a napkin, and sign the napkin, that would be a legally-binding document.  It may be hard to enforce in Court, though.

Additionally, what you may be agreeing to, and signing may be two different things.  For example, you or your spouse may agree that “wife can have the house”.  In husband’s mind, this may mean that wife pays the mortgage; in wife’s mind it may mean she “gets” the house after the husband pays the mortgage.  Without further clarification, “wife can have the house” does not say who will pay the mortgage, at all, so you are left without an agreement as to that point.  Another way this happens is when you agree to a legal term, and you don’t know what it means.  This most often happens when a couple agrees to “joint legal custody”.  What if “joint legal custody” means something other than what you thought you and the other parent were agreeing to?

Finally, an attorney can put into an agreement protections that might not have been there otherwise.  For example, how do you and your spouse go about modifying your agreement should circumstances change?  There’s a provision for that.  What if one of you drafted it and the other one felt pressured to sign it?  There’s a provision for that.  What if it was written in Virginia but you both live in different states now?  There’s a provision for that.  I am not suggesting that attorneys are not human, but many of the provisions you and your spouse may leave out come standard in attorney-drafted documents.

In sum, do not allow your divorce to become a Pinterest fail by drafting your own separation agreement, on a napkin or otherwise.  Hire a professional so that you know you are protected and that what you agreed to will become the basis for your divorce.

Do I have to do court ordered community service?

February 27th, 2017

Sometimes I have people come into the office and they tell me that they can’t do community service because they have a health problem.  Perhaps they hurt their back or something else and they feel that they should be given a chance by the court to just bypass the community service requirement because of their special situation.

The court doesn’t really give people a pass just because they don’t want to do something, or it’s hard for them to do it.

What can you do?

If you have been ordered to do community service, you will need to  do something to help the community.  You have probably been assigned a representative from the court services unit or the probation office and they can help you with ideas of where you might be able to do your community service.

Picking up trash on the side of the road is only one thing that is available.  You might help at a food bank either getting food ready to put on their shelves, or put food in bags for clients.  You might also help out at a church or community center in a lot of different ways including getting the weekly bulletin or monthly newsletter ready to be delivered.  During the winter months, you can also help at homeless shelters or church communities that provide temporary housing and food for the homeless.  Many thrift stores use volunteer help to put price tags on items or other tasks around the shop.

The most important thing is that you need to find something to do that will fulfill your community service requirements.  If not, you might just find yourself in jail.

Can I give up my parental rights?

February 4th, 2017

I often have young men come into my office to ask if they can give up their parental rights to a child because their ex is pregnant.  Often the expectant mother has told the young man that he can give up his parental rights if he will just leave her and the child alone (and she promises not to ask for child support at any time in the future).

First of all, there really aren’t any parental rights until the child is born.

Also, you can NOT sign over your parental rights unless there is someone else ready, willing and able to take over (an example would be an adoption).

If the mother says you are the father, but you are not married, then you have the right to sign or not sign the birth certificate.  If you sign the birth certificate, you are stating that you will accept being the legal father of this child with all of the rights and responsibilities that come with being a father.  If you do not sign the birth certificate, then you are not the legal father until and unless other actions take place.

The mother can take you to court for child support, at which time you can request a DNA test to make sure you are the father.  If the court determines that you are the father via the DNA test results, they can then order you to pay child support.  If the court determines that you are not the father via DNA test results, then the court can not order you to pay child support based on the DNA results.

You can also go to court and accept responsibility for the child by stating under oath that you are the father without going the DNA route, but take note that you cannot take a DNA test later and overrule this statement so you had better be sure this is what you want to do.

If you have questions about this, or any legal topic, please contact the office of Beavers Law, P.C. at 757-234-4650 to schedule a consultation with one of our attorneys.  You can also visit us on the web at www.BeaversLaw.com.