Is In-Home Separation Possible in Virginia?

When you think of a married couple being “separated”, you probably envision one spouse moving out of the marital home. While that is the most straightforward way to separate, Virginia courts do recognize in-home separation as well. In-home separation occurs when the couple is still living in the same home, but each person is conducting his or her life as though they weren’t living together.

This is helpful to people because in most cases, and depending on the specific circumstances, Virginia requires a couple to be separated for one year or six months before they can file for divorce. Virginia requires a separation, or waiting period, in hopes that the couple will have enough time to work things out or, hopefully, reunite during that time. Waiting that long, however, can be difficult financially and sometimes even logistically. Therefore, many people elect to continue to live in the same home – but separately – so that they can avoid the expenses of maintaining two homes.

In-home separation doesn’t come without awkward moments and other difficulties.                                    

The question then becomes, how does the court know that the couple is separated if they are still living in the same house? While there is no formula, here is a checklist of some of the main facts the court would look at:

  • Using separate bedrooms.
  • Not engaging in marital relations.
  • Not running errands for the other spouse (grocery shopping, dry cleaning, etc.).
  • Not preparing food for the other spouse.
  • Not sharing meals together (unless it is a holiday or event pertaining to the children).
  • Not sharing chores (each spouse should be responsible for his or her own portion of the living space).
  • Not doing laundry for the other spouse.
  • Establishing separate checking accounts.
  • Not socializing together (not going on dates together, not going to family reunions, social gatherings, or work events together).
  • Not celebrating or exchanging gifts for special occasions.
  • Letting other people know that you are separated.
  • Having other people over to the house and making it clear that you are separated.
  • No longer wearing wedding bands.
  • No longer playing the role of the happy couple.
  • At least one person deciding that the separation is permanent (not trying to work things out, not going to couples therapy, etc.).
  • Note: If a couple has children (even if they are not minors), they are both still going to be parents regardless of whether they are separated. It is perfectly acceptable to continue to do things for the children such as attending sports events, concerts, and other special events for the children.

Again, there is no black and white rule, but all of these factors can add up to show either that the couple has been living separately or that they have not been.  In order to ensure that couples are not saying that they were separated before they truly were, the courts require a third party witness to confirm that they know the couple and know for a fact that the couple was separated for the necessary period of time.

We at PJI Law have guided a large number of Virginians through a divorce when the couple was separated within the same home. Sometimes, the separation may not have been as “clean” as one would have wanted, but our experienced attorneys have seen countless such situations and are ready to advise on how to deal with them, and on helping our client achieve their goals.

Check Out These Newly Enacted Virginia Laws

We’re not passive about the practice of law here at PJI Law – we pride ourselves on keeping up with the latest changes in the law in order to gain as big of an advantage as possible in our clients’ cases.

Newly enacted Virginia statutes typically go into effect on July 1 of each year, which means it’s now time to look at some of the newest and, in some cases, most interesting, laws that have gone into effect as recently as a last week:

Family Law

1. For the purposes of petitioning the court for a modification of spousal support, the payor spouse’s reaching full retirement age (per the Social Security Act) must be considered a material change in circumstances.

2. Virginia has developed a Kinship Guardianship Assistance Program to facilitate child placements with relatives if it is not appropriate for the child to return home or be adopted. The law also allows financial payment to the relative acting as the guardian of the child.

Business Law

3. The board of directors of a nonstock corporation is now authorized to determine that a meeting of members be held via remote communication, assuming the articles of incorporation or bylaws don’t have contradictory requirements.

4. A new law removes the requirement that a corporation authorized to issue one or more classes of shares list the number of shares of each class on its corporate annual report.

5. Landlords may now accept full or partial payment of rent during a court action for possession and still receive an order of possession if the landlord states in the written notice to the tenant that any payment of rent, damages, money judgment, award of attorney fees, and court costs would be accepted with reservation and not constitute a waiver of the landlord’s right to evict the tenant from the dwelling unit.

Miscellaneous

6. Everyone with pets knows that there can be liability if the pet bites someone. If there is a history of biting, the repercussions could be even worse. A new law in Virginia requires that previous bites must be disclosed upon the release of a dog or cat for adoption.

7. Virginia is lifting the prohibition on hunting or killing raccoons after 2:00 a.m. on Sundays.

8. Health care practitioners employed by the Department of Health may now prescribe antibiotics to the sexual partner of a patient diagnosed with a sexually transmitted disease without physically examining the partner.

9. Effective July 1, 2020, 911 is required to be able to receive and process calls for emergency assistance via text message.

If you have questions on how these or other Virginia laws may impact you, we stand ready to assist you.

How Does the New Tax Law Affect Spousal Support in Virginia?

Many people are concerned about how the new federal tax law is going to impact their taxes. What some people do not yet realize is that the tax law is also going to have a drastic impact on spousal support numbers in divorces.

Currently, the individual paying spousal support is able to claim the payments as a deduction on their taxes. The individual receiving support is then obligated to declare the support as income. (As always with taxes though, there are exceptions).

The new tax law states that, for orders entered starting January 1, 2019, the paying individual will no longer able to claim the deduction, and the receiving individual will no longer be required to pay taxes on spouse support received.

With that said, if you modify an agreement or divorce decree that was entered under the old law, you are still governed by the old law allowing for deductions and income unless both you and your ex opt-in to the new law. That means that the applicability of the tax law is yet another negotiation point when the time comes for modification. The paying spouse will want to maintain the support under the current regulations, while the receiving spouse will likely want to opt-in to the new laws.

The new tax law will make the date of entry of divorce and spousal support orders very significant around the end of  the year 2018.                                                                               

The new tax law is not retroactive. Therefore, if you have a divorce decree or settlement agreement that is executed on or before December 31, 2018, the new law does not apply to you (for now). As many people know, however, it is not uncommon for circumstances to change and depending on the settlement or court decision, support may be later modified.

Aside from the above implications, spousal support determination in Virginia remains unaffected. See our post on the subject to better understand generally who gets spousal support, for how long, and how much.

People often ask if the new laws will change child support as well. Interestingly, the current tax laws relating to child support mirror the new spousal support laws in that paid support is not deductible and received support is not treated as income. So, the short answer is no, there is no change to child support. The long answer is that spousal support is a factor used to determine child support. Therefore, there may be additional negotiations and factors to consider when determining child and spousal support starting January 1, 2019.

Regardless of whether you are paying or receiving support, it is clear that there are significant changes ahead. Many of the practical aspects of the change will have to be ironed out. It is important to have legal guidance to navigate these waters. At PJI Law, we are dedicated to staying abreast of the new changes in the law and helping our clients address those changes head on. If you would like to schedule a meeting to discuss, we would be happy to review your situation and go over your options with you.

Spousal Support in Virginia: Who Gets It, for How Long, and How Much?

What Kind of Spousal Support Awards Are There?

Known by some as “alimony” or “maintenance”, spousal support is often awarded upon divorce, particularly in cases of divorce where the parties have been married for a meaningful amount of time and there is a wage gap between the parties.

The three basic types of spousal support are periodic payments for an undefined duration, periodic payments for a defined duration, and a lump sum award.

  1. Periodic payment for an undefined duration is a specific sum that a party pays at certain intervals, that doesn’t typically end unless 1) one of the parties dies, 2) the payee remarries or cohabitates in a marriage-like relationship for more than one year, or 3) further order of the court.
  2. Periodic payments for a defined duration are payments at certain intervals, for a certain amount, that end on a definite date.
  3. Lump sum support is an award of a lump sum that can be ordered payable at once or over installments, but in which the total amount is set.

Who Is Awarded Spousal Support?

The existence of a wage gap is not strictly determinative of whether spousal support is to be paid. The court must establish whether a party is entitled to support by looking at a list of statutory factors surrounding the marriage and the divorce. A finding of adultery, for example, can preclude a party from receiving spousal support. However, the court may award spousal support in such a situation if it determines that a denial of support and maintenance would constitute a manifest injustice based on the respective degrees of fault during the marriage and relative economic circumstances of the parties. It is important to remember is that spousal support is not punitive, and will not be awarded merely to punish one of the parties for wrongdoing.

There are additional factors the court might consider, such as the duration of the marriage, contributions to the family, standard of living established during the marriage and the earning capacity of the parties. You can find the factors listed in § 20.1-107.1 of the Virginia Code.

How Much Spousal Support Will Be Paid?

While there is no set “formula” for determining long-term / post-marital support, some jurisdictions in Virginia, including Fairfax County, have established guidelines for calculating temporary support.

Temporary or pendente lite support is only paid while the divorce is pending. An award of temporary support is not intended to create the presumption of a final award, but can sometimes serve as a general guide as to whether (and how much) support will be awarded in a final order. The formula Fairfax County has established provides the following:

28% x Payor’s (higher earning party) Income – 58% x Payee’s (lower earning party) Income

EXAMPLE: Payor earns $10,000 per month, Payee earns $3,000 per month.

28% x $10,000 = $2,800             58% x $6,000 = $1,740

$2,800 – $1,740 = $1,060 (monthly support)

The most important thing to remember is that every case is different. We here at PJI Law understand that separating or divorcing couples are unique, and that the questions of whether you or your spouse will get support, and how much it might be, can only be addressed upon a review of your specific situation, facts and finances. A consultation is an excellent way to tackle those questions head on.

Adultery Is Still a Crime in Virginia – And Many Plead the Fifth

Although it is extremely rarely prosecuted, adultery has long been a crime under Virginia law, specifically a Class 4 misdemeanor. And only a few days ago, the legislature reaffirmed this fact by rejecting an effort to decriminalize it. Although on its face this law seems to discourage people from engaging in marital affairs, in many ways it actually protects such adulterous activity in divorce proceedings.

Here’s why: In Virginia, a spouse can seek divorce on the grounds of adultery, which if proven, could result in significant financial gain for that spouse when the court distributes marital property and considers spousal support. With that said, it is very difficult to prove adultery, and as such, one of the best ways to do so would be to get the allegedly adulterous spouse to admit to it in court.

In Maryland, adultery is also a misdemeanor, but punishable by a $10 fine.
In neighboring Maryland, adultery is a misdemeanor punishable by a $10 fine.                                               

However, via the Fifth Amendment of the United States Constitution, Americans are protected from self-incrimination in criminal matters. And since adultery is a crime, the spouse being questioned about cheating can plead the Fifth, which allows them to avoid discussing the matter in divorce proceedings. From one perspective, this provides important protection to the spouse being questioned, and from the other perspective, the criminality of adultery actually only serves to reward a cheating spouse during divorce proceedings. It further causes the other spouse to expend much more in legal fees and expenses in order to try to prove adultery in other ways, such as by hiring private investigators, digging up hotel records and combing through Facebook.

We at PJI Law have been on both sides of such cases and as always, we watch legislative developments closely in order to provide our clients with the best possible representation. Please do not hesitate to contact us if you have any further questions on how this issue might affect your marriage or divorce.

Can You Sue for the Ring When the Engagement is Called Off?

An unfortunate but common question we come across at PJI Law is: Who gets the engagement ring if the couple breaks off their engagement? Virginia law on the issue has historically been muddled, but we are closer to an answer now that the Virginia Supreme Court has weighed in on the matter in McGrath v. Dockendorf, a case that first arose in Fairfax County.

Originally, Virginia courts allowed a jilted fiancé(e) to sue the other for breach of promise to marry. Damages could include loss of comfort, injury to feelings, wounded pride, and loss of economic security. But in reality, the cases became primarily a function of humiliation and public entertainment.

Eventually, the practice was criticized as being outdated and subject to abuse by blackmail, and as a consequence, Virginia enacted the 1968 “heart balm” statute specifically prohibiting actions for alienation of affection, breach of promise to marry, and criminal conversion. Va. Code Ann. § 8.01-220 (1968).

"Take this ring to mean that I want to spend the rest of my life in litigation with you"
“Take this ring to mean that I want to spend the rest of my life in litigation with you.”                                                            

Since then, courts have been divided as to whether a party may sue for the return of the engagement ring and diamond. Some courts have found that the ring is part of the promise to marry and that the heart balm statute bars all suits for any action related to that promise. The majority of courts, however, have ruled that a suit for the ring is separate from the breakdown of the engagement because it only seeks recovery of property.

The Virginia Supreme Court has now ruled once and for all that Virginia courts may hear suits for the return of engagement rings because they are actions focused solely on the return of property.

Interestingly, the Court also implied that it does not matter if the person who gave the ring is the one who broke off the engagement, which is a contrast with the new Virginia law we recently covered allowing courts to consider the cause of divorce in determining spousal support. Although the facts will vary from case to case, in the McGrath case, Mr. Dockendorf proposed to Ms. McGrath, gave her an engagement ring, then broke off the engagement himself, brought the suit for the return of the ring, and the court ruled in his favor.

This is an example of why it is important to know your rights and responsibilities when entering into a life-changing event such as an engagement. The attorneys at PJI Law are happy to discuss these, and many other relevant issues including premarital agreements / prenups, with you if you are entering an engagement or marriage.

List of New Virginia Laws Enacted in 2016

We don’t practice law passively here at PJI Law – we pride ourselves on keeping up with the latest laws in order to gain as big of an advantage as possible in our clients’ cases. And as we welcome the year 2017, we take a look back at some of the most interesting laws enacted in Virginia in the year 2016. If you wish to read more about new laws, click here to visit a summary of some of the legislation put together by the Virginia General Assembly’s Division of Legislative Services.

But for a quicker read, here are some of the news laws that most caught our attention (please note that these are incomplete summaries):

1. Marriage: You now have to be 18 years old or emancipated in order to get married. Previously, you could marry at 16 with the consent or a parent and even earlier in case of pregnancy.

2. Asset Forfeiture: The law makes it more difficult for the government to convince the court that property is subject to forfeiture in civil asset forfeiture cases.

3. Dogs: Hide your chickens – rather than being killed or removed to another state, dogs who injure or kill poultry now face milder consequences, such as microchipping or transfer to another owner.

4. Smoking: Smoking in a car with a minor who is eight years old or younger now earns you a $100 fine.

5. Public Schools: Effective in the fall of 2018, the law requires an average of 100 minutes of physical activity per week for students in grades kindergarten through five. This compares with the current 150 minutes required for students in grades six through twelve.

New 2016 Virginia Laws include slight deregulation of ABC liquor stores.
New 2016 Virginia Laws include slight deregulation of ABC liquor stores.

6. Car Doors: Virginia legislators actually deemed it necessary to pass a law that says that you cannot open your car door on the side of moving traffic unless it is “reasonably safe to do so”.

7. Medical Services: If you will be receiving a medical service/procedure at a hospital, and if you request at least three days before the service an estimate of the cost for which you will be responsible, the hospital is required by law to give you the estimate.

8. Social Media: No college or university may require a student to disclose login information for the student’s social media accounts. An exception is made for campus police officers performing official duties.

9. Protective Orders: The penalty for an individual possessing a firearm while subject to a protective order for family abuse has been elevated from a Class 1 misdemeanor to a Class 6 felony.

10. Guardianship: No guardian may unreasonably restrict an incapacitated person’s interaction with others with whom the person has an established relationship.

11. Alcohol: As we slowly move away from nineteenth-century liquor laws, ABC liquor stores may open at noon on Sundays, which is an hour earlier than before, as well as on New Year’s Day.

12. Hunting: The new law makes it specifically legal to hunt wild animals with slingshots where shooting is permitted. Exceptions are made for deer, bear, elk, and turkey.

13. Fantasy Sports: Virginia now requires the registration of fantasy contest operators to register with the government and makes them subject to various regulations.

If you have questions on how these or other Virginia laws may impact you, we stand ready to assist you.

A Change in Virginia Law Makes Spousal Support Even More Contentious

You may know it by the terms “alimony” or “maintenance”, but you have almost certainly heard that spousal support can be a major source of contention in divorce. Indeed in any divorce case in Virginia, the court will, upon the request of a party, determine whether or not a spouse is entitled to spousal support, including the nature, amount and duration of such support.

There are certain factors that the court must consider in awarding spousal support, and if your lawyer does not continually keep abreast of the latest legislative changes on the topic, it is likely that you may not be aware of the changes that were made effective July 1, 2016. Pursuant to these changes, in determining spousal support awards, courts must now consider “the circumstances and factors that contributed to the dissolution” of a marriage, “specifically including any ground for divorce”.

The change in the law could impact spousal support orders by thousands of dollars - in either direction.
The change in the law could impact spousal support orders by thousands of dollars – in either direction. 

Previously, although the court could consider such factors and any fault grounds in distributing marital assets, there was no clear guidance from the law that the court could also consider the same factors in determining spousal support. This led to many spousal support decisions being made with a complete blind eye to the causes of the marital breakup. Our legislators decided that this needs to change, and as such, a few months ago Virginia Code section 20-107.1(E)(13) was amended so as to provide the court with the power to essentially punish what it considers to be non-innocent parties, or “bad actors”, through a spousal support decision.

Although only a few words in the law changed, the impact can be very significant. We at PJI Law have already identified a number of our current cases that might be impacted by this law, and have adapted our legal strategy accordingly, to the benefit and protection of our clients. This demonstrates the importance of lawyers closely following changes in the law, and explains why our attorneys make it a priority to stay updated and analyze our cases accordingly.

“Unmarried”: Why Facebook May Have Caused Your Divorce

“It’s not official until it’s on Facebook”. Changing a relationship status on social networking sites from “single” to “engaged”, and then “married”, is commonly known as “making things FBO” (Facebook Official). This is an exciting event for many couples. However, few consider the possibility that social networking could be the very reason their status will change once again, this time from “married” to “divorced”!

Recent data suggests that social networking use is now a factor in one in seven divorces. The Pew Research Center says 65% of all adults use at least one social networking account at least one hour per week. The same study found that 90% of young adults ages 18-29 use social networking, as do 77% of adults ages 30-49.[1] Unfortunately, in some cases this use has gone from casually keeping in touch with relatives and friends, to a full-blown addiction consuming and destroying people’s lives.

The ramifications of being addicted to social networking include severe depression, lack of sleep, anxiety, loss of employment, and the inability to resolve conflicts through interpersonal communication skills.[2] And sadly, social networking addiction is growing fast. Acronyms such as “FOMO” (fear of missing out), “FOBO” (fear of being offline) and “NoMo” (no mobile) are huge concerns for social networking addicts. As seen with Pavlov’s dogs, social networking addiction is conditioned on a rewards theory as the brain releases dopamine in response to growing anticipation to hearing the notification, like Pavlov ringing his bell, that an online army of friends and family has commented, or liked, a recent post.

Studies have found a correlation between divorce and time spent on social media.
Studies have found a direct correlation between romantic conflict and time user spent on social media in the U.S. 

Social networking can create cravings for immediate attention, instant gratification, and the lustful possibility of an adulterous affair with a past lover or casual acquaintance. This addiction to social networking can create doubt and jealousy, consume large portions of couples’ available time, and leave a trail of chaos that turns into divorce proceedings.

This social networking addiction is increasingly being cited as a major factor for marriages disintegrating and ultimately ending in divorce. According to HG.org, a recent study found that people who use Facebook more than once per hour are more likely to experience Facebook-related conflict with their romantic partner.[3] Another study found that compulsive social networking users reported greater conflict with their partners, more feelings of exclusion and concealment during the relationship, lower levels of commitment, lower feelings of passion and intimacy, and less disclosure.[4]

Consider some intriguing statistics from the American Academy of Matrimonial Lawyers: 92% of AAML attorneys cited an increase in cases using evidence taken from smart phones during the past three years, and 94% noted an increase in text message evidence. In 2010, 81% of divorce attorneys surveyed said they’d seen an increase in the number of cases using social networking evidence in the five years prior. The attorneys said Facebook was the number one source for finding online evidence, with 66% admitting they’d found evidence by combing the site.

We at PJI Law regularly encounter northern Virginia marriages destroyed, directly or indirectly, completely or partially, by Facebook and other forms of social media. This includes cases where social media was simply the vehicle through which marital betrayal was discovered. In all such situations, our experience in the impact and evidentiary value of social media in divorce cases puts us in a position of strength when serving our clients in the courtroom. To schedule a confidential consultation, you can call us at (703) 865-6100 or email us at info@pjilaw.com.

[1] http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015/

[2] http://www.huffingtonpost.com/entry/social-media-addiction-peak_us_56ab9360e4b0010e80e9c71e

[3] https://www.hg.org/article.asp?id=27803

[4] https://www.researchgate.net/publication/237094566_Cheating_Breakup_and_Divorce_Is_Facebook_Use_to_Blame

List of New Virginia Laws Going Into Effect This Month

We at PJI Law always follow Virginia General Assembly sessions quite closely, since there are typically new laws passed that directly affect our practice and that may impact some of our clients.

Many laws, however, are written in a matter too confusing for most people, and ought to be made more accessible to the public. Thankfully, the General Assembly’s Division of Legislative Services publishes an annual summary of a selection of legislation passed every year. You can find this year’s list at this link. For the most part, the new laws took effect on July 1 of this year.

The following new laws are of particular interest to us (please note that these are incomplete summaries):

1. Your employer may not require you to disclose the username and password to your social media accounts, nor to add the employer or a co-worker as a “friend”.

2. Crowdfunding, if it meets some requirements, can be exempt from the difficult and complex laws typically governing the issuance of securities.

3. You may breastfeed in any place in public where you are lawfully present.

4. You will receive civil immunity for breaking into a car to save a child, as long as you first tried to contact emergency personnel when possible.

5. Child support may be ordered for disabled adults if the disability existed before adulthood, regardless of whether or not child support had been previously paid. If this may be applicable to your child, our firm would be happy to review the matter with you and assist you in any appropriate Northern Virginia jurisdiction.

Virginia cyclists receive increased protection under new laws.
Virginia cyclists receive increased protection under new laws.

6. The authorities may not use against you your attempt to obtain emergency medical attention for yourself or another due to a drug-related or alcohol-related overdose, even if such possession or consumption was illegal, as long as you are cooperative.

7. In addition to not being able to follow other cars too closely, you may not follow bicycles, mopeds, and other non-motor vehicles too closely. If you are a cyclist injured in an accident with a motor vehicle, we would be happy to discuss the impact of this law on your case.

8. You may cross a double yellow line to pass a pedestrian or cyclist, if you do it safely.

If you have any questions on how any new Virginia law impacts you, our attorneys stand ready to assist you.