Same-sex couples could see tax windfalls
Posted by: Julie C. Gerock
November 14, 2012
Topic: Same Sex Marriage

Same sex married couples may want to consider filing "protective claims" with the IRS in case the US Supreme Court overturns the Defense of Marriage Act (DOMA).* See: http://money.cnn.com/2012/11/14/pf/taxes/doma-same-sex-couples/index.html?hpt=hp_t3 and consult your tax adviser if this potentially impacts your situation.

*this is not intended to constitute tax advice; only a qualified tax adviser can provide tax advice (The Maddox Law Firm is not qualified to provide tax advice).

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Requirements for Exclusive Use and Possession of the Marital Home
Posted by: Julie C. Gerock
September 23, 2012
Topic: Marital Home

Va. Code Ann. § 20-103(A) empowers a court to enter an order granting one party the exclusive use and possession of the family residence during the pendency of a suit for a divorce.¹  When a court enters such an order, it means that one party will have the right to live in the marital home, and the other party will have to find another place to live.

Courts consider a lot of different factors, and each case is different.  Courts have expressed reluctance in awarding one party exclusive use and possession of jointly titled property in the absence of a threat of physical harm.²  However, in some recent cases, certain trends are emerging that may be helpful to you if you are considering seeking exclusive use and possession of the marital home.

Virginia courts have been more likely to award exclusive use and possession of the marital home to the party who was the primary caregiver for the children.³  The court seeks to provide stability for the children during the divorce process and will frequently allow children to stay in their home with their primary caregiver.⁴  

If the parties are unable to continue to live together because they cannot be civil with one another, the court is more likely to grant one party exclusive use.⁵  This is particularly true if the children witness the parents’ disruptive behavior.⁶  If the parties can manage to get along, if they did not physically separate prior to filing for divorce, and neither party is guilty of any misconduct, the court may refuse to order one party to vacate the marital home.⁷ 

Further, if one spouse is unwilling or unable to maintain the property, then the court will not award that spouse exclusive use and possession.⁸  Courts may also consider which party has expressed an interest in keeping the home in making this determination.⁹  If granting exclusive use to a party would result in significantly higher spousal support because that party cannot afford the home without assistance from the other spouse, in the absence of a compelling reason (like the children’s stability), courts will avoid granting exclusive use to a party that cannot afford it.¹⁰

¹ Note that there is a separate provision under Va. Code Ann. § 20-103(B) that allows a court to order that a party vacate the marital home if the other party proves that he or she has a “reasonable apprehension of physical harm.”

² Batchelor v. Batchelor, 1998 Va. Cir. LEXIS 427, 12 (Cir. Ct. of the City of Richmond, 1998).

³ Frazier v. Frazier, 60 Va. Cir. 115 (Cir. Ct. of Loudoun Co., 2002).

⁴ Batchelor v. Batchelor, 1998 Va. Cir. LEXIS 427 (Cir. Ct. of the City of Richmond, 1998).

⁵ Frazier v. Frazier, 60 Va. Cir. 115 (Cir. Ct. of Loudoun Co., 2002).

⁶ Crute v. Crute, 12 Va. Cir. 190 (Cir. Ct. of Henrico Co., 1988).

⁷ McEwen v. McEwen, 60 Va. Cir. 401 (Cir. Ct. of Henrico Co., 2002).

⁸ Pinkard v. Pinkard, 12 Va. App. 848 (1991).

⁹ Batchelor v. Batchelor, 1998 Va. Cir. LEXIS 427 (Cir. Ct. of the City of Richmond, 1998).

¹⁰ Batchelor v. Batchelor, 1998 Va. Cir. LEXIS 427 (Cir. Ct. of the City of Richmond, 1998).

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Considerations Regarding Same Sex Relationships in Virginia
Posted by: Katharine W. Maddox
April 11, 2012
Topic: Same Sex Marriage

Throughout the United States, same sex marriages are entangled in political controversy with little unity on the topic. The Washington DC Metropolitan area poses a good example: In D.C., same-sex marriages are legal; in Maryland, they may be legalized in 2013; in Virginia, they are illegal.

In Maryland, Governor Martin O'Malley signed legislation legalizing same sex marriages, effective January 1, 2013. However, there is a pending referendum on the ballot to repeal the law. Until the law passes, same-sex partners cannot get divorced in Maryland. There is an interesting article about this topic on the April 10, 2012 Washington Post, A Court's Conundrum: When same-sex partners want to split written by Ellen McCarthy: http://www.washingtonpost.com/lifestyle/style/a-courts-conundrum-when-same-sex-partners-want-to-split/2012/04/09/gIQAvhep6S_story.html

In Virginia, same sex marriages remain illegal with no change in sight. For couples who are married in other states and move to Virginia, this means that Virginia will treat their marriage as void and, as such, same-sex couples cannot get divorced from an unrecognized marriage. Dividing up marital assets can present a further challenge if the assets were acquired during the relationship.

Virginia does not recognize civil partnerships or same sex marriage, nor does it appear likely to do so in the near future. Nevertheless, a key issue with respect to enforcement of rights for same sex couples is whether their rights "arose" due to the same-sex partnership. For example, Virginia recognized and enforced a Vermont court order providing a non-biological parent rights of custody because her rights were not created by her same-sex union, but rather on the basis of the biological parent (her same-sex wife) filing court papers naming the child as the "biological or adoptive" child of both parties. Miller-Jenkins v Miller-Jenkins, 276 Va. 19 (2009). This is an important distinction in Virginia because Virginia will not recognize nor enforce any rights which arise or are created on the basis of a same-sex partnership.

In 1996, theUnited States passed the Defense of Marriage Act - a federal law allowing states to independently decide whether to recognize civil unions and same sex marriages (DOMA, 28 U.S.C. 1738C). This law effectively voids the Full Faith and Credit Clause of the U.S. Constitution with respect to recognition of same sex relationships legally entered into in other jurisdictions. Individual states are not required to recognize such unions nor are they required to recognize rights or claims arising from such relationships (including contractual rights, inheritance rights and rights to be considered "family" for purposes of making end-of-life medical decisions). The Supreme Court will likely need to decide whether federal legislation voiding the application of the Full Faith and Credit Clause of the U.S. Constitution is itself unconstitutional.

Virginia has enacted specific legislation prohibiting marriage between persons of the same sex, and mandating that any such marriages entered into in other jurisdictions will be treated as void and unenforceable in Virginia (Virginia Code § 20-45.2). In addition, civil unions are prohibited in the same manner as same-sex marriages (Virginia Code § 20-45.3).

Until 1967, Virginia had a similar law, an anti-miscegenation statute ("The Racial Integrity Act of 1924"), which made it a crime for any white person to marry a non-white person. In 1967, the United States Supreme Court decided the case of Loving v. Virginia, 388 U.S. 1 (1967) which ruled that the Virginia statute was unconstitutional. Since then, people of any race have been free to marry. The Racial Integrity Act of 1942 is now viewed as prejudicial and unjust. It will be interesting to see whether the current prohibitions against freedom to marry will likewise be declared unconstitutional, prejudicial and unjust.

Much of the Western world has legalized same sex marriage including Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, Spain, South Africa and Sweden, and the growing trend seems to be one of acceptance over discrimination.

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Family Law News: The Supreme Court hears arguments over federal benefits to a child conceived by IVF after the death of the government worker
Posted by: Katharine Maddox
April 04, 2012
Topic: SCOTUS Hearing

Last week, the Supreme Court heard arguments over whether or not a child born after a parent's death should be considered a child for the purposes of government benefits. In this case, the father worked for the government. When he developed cancer, he began to deposit his sperm into a sperm bank . However, his condition improved and the mother and father conceived a son naturally.

His cancer returned, and eventually killed the father. Prior to his death, he executed an addendum to his will that stated that any children born after his death from his sperm should be considered his children for all purposes, including division of property.

The mother underwent in vitro fertilization and 18 months after the father's death, she gave birth to twins. She then applied for Social Security survivor benefits for the twins, and was denied.

A decision is expected prior to June. The case is styled Astrue v. Capato.

For more information, see the following CNN article: http://www.cnn.com/2012/03/19/us/scotus-posthumous-conception/

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Five Things Not to Do During a Divorce
Posted by: Julie Gerock
February 29, 2012
Topic: Topics

Jeffrey A. Landers, a Divorce Financial Strategist, recently published an article which can be found on http://www.forbes.com/ by clicking on the following link: http://www.forbes.com/sites/jefflanders/2012/02/22/divorcing-women-dont-make-these-five-costly-mistakes/?goback=.gde_3157851_member_96692170

His article reminds all clients of five basic mistakes that should be avoided during the divorce process unless your lawyer advises otherwise. They include:

1. Texts: Do not Text. Texts can be used as evidence. A recent survey of the American Academy of Matrimonial Lawyers (AAML) showed that 92 percent of these attorneys saw an increase in the number of cases using evidence from smart phones during the last three years. See the original AAML article by clicking the following link: http://www.aaml.org/about-the-academy/press/press-releases/divorce/lawyers-finding-divorce-app-smart-phones

2. Facebook: Do not Facebook or if you do so, do not post anything regarding your divorce or personal issues. Make sure photos are appropriate. Select the highest security setting possible. Review and edit who your friends are. Another survey of the AAML showed that social media is playing an increased role in divorce proceedings: 81 percent of the surveyed attorneys saw increased evidence from social networking sites in divorce proceedings within the last five years. The survey showed that Facebook was the primary source of evidence, but Myspace, Twitter, and other networking sites are also on the list. See the original AAML article by clicking the following link: http://www.aaml.org/about-the-academy/press/press-releases/e-discovery/big-surge-social-networking-evidence-says-survey-

3. Dating: Do not date while you are in the process of obtaining a divorce. In many states (including Virginia), your conduct may constitute adultery even if it occurs during the separation period. Be careful to also avoid online dating websites, as the fees that you are charged or the profile you set up may be used as evidence. You should talk to your attorney before you start dating.

4. Snooping: Do not snoop around in your spouse's business. This includes trying to access your spouse's email and using high tech spying software. In many places, there are state and federal laws that prohibit accessing or intercepting another person's messages. The law in this field is developing. You should talk to an attorney if you are considering snooping around or if you believe your spouse is snooping on you.

5. Shopping: Resist the urge to use shopping as your therapy. Increasing debt during divorce is not smart and may have unintended consequences for you legally and financially.

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