Virginia Divorce Law: Post Divorce Negotiation

Divorce cases in Virginia are all about dividing property that both spouses acquired during the marriage and deciding issues related to the children. However, sometimes decisions have to be made after the divorce is finalized based upon factors such as changes in the law, changing financial needs, and new issues that were not foreseen during the divorce process.

So how do spouses address issues that come up after a divorce, and what options do you have to fix issues that did not appear until after the divorce was finalized?

Virginia Divorces: Separation Agreement versus Court Order

The first thing you need to be aware of is what happens during a divorce process. The first step is to finalize the divorce. A divorce can be finalized either by an agreement between the parties submitted to the judge for approval or by having a judge decide how property is to be divided. If you are able to reach an agreement, then you can have a Separation Agreement drafted which both sides can sign.

However, if you are unable to come up with an agreement, then the judge will have a trial and enter a Final Decree of Divorce which details how the property will be divided.

It is important to understand this difference because your ability to change things post divorce may depend on whether you have a Separation Agreement or a Decree that came about from a trial. There may be more limitations if it was a decree than if it was a Separation Agreement.

Reasons to Modify a Separation Agreement

There are several scenarios where you may want to modify a Separation Agreement. For example, a change in income may require a reduction or increase in spousal support. Perhaps you and your ex-spouse are having problems selling the real estate and the Separation Agreement doesn’t say what needs to happen. Or maybe there has been a change in retirement benefits and now one of you are not getting what you expected out fo the retirement accounts.

So how do you modify a Separation Agreement to address these issues?

Modifications Post Divorce

Do you have a Separation Agreement or a final decree and you and your spouse agree that it needs to be modified? There are two major different ways of handling that issue. It largely depends on what needs to be modified. If you are seeking to modify spousal support, that is going to be more complicated than if you are seeking to modify an agreement on how real estate is to be sold.

If you are dealing with spousal support modifications, you need to make sure that any agreement you and your spouse come up with is approved by the judge. If you come to a private agreement to modify support but do not get judge approval, that may result in a nasty surprise several months later when your spouse attempts to enforce the original order.

It is far simpler to modify provisions related to dividing assets such as real estate. Courts offer more lattitude to parties who are trying to figure out how to handle post-divorce sale of real estate.

Why You Need a Divorce Lawyer

Whether you and your spouse have agreed to modify spousal support post-divorce or whether the old Separation Agreement is interferring with the sale of real estate, it is important to consult with a local divorce lawyer to discuss your options. You need to make sure that you follow the correct procedure and get the appropriate approvals before moving forward and relying on those agreements. Failure to go through the proper procedures could result in the post-divorce agreement being invalidated. Make sure you call a lawyer before modifying a Separation Agreement or Order after your divorce.

Virginia Family Law: Changes to Grandparent Visitation

In Virginia, the Court system has historically not been kind to the rights of grandparents. Biological parents would traditionally have a veto power as to the ability of a grandparent to ask for custody. If a grandparent wanted visitation over the objection of the parents, they would have to meet a strong burden known as “actual harm.” However, that lawa has recently changed. So what are the changes to grandparent visitation rights, and what do you need to know if you are a grandparent in Virginia?

The Old Law

In order to understand what the current rules are for grandparent grandparent rights, you need to understand what the old rules were. These rules fall into two categories: custody and visitation

Grandparent rights: custody

Custody means two things: making decisions for the upbringing of a child and being the primary residence for the child. Under the old rules, a grandparent would not be able to ask for custody if both biological parents objected without proving that both parents were “unfit” or a number of special circumstances. Unfit means that the parents are not able to exercise their job as custodians.

Common examples of being “unfit” include excessive substance abuse, mental health disorders, and abuse or neglect. A grandparent may also be successful by showing that the parents previously gave up their custody voluntarily to a third person or to a different grandparent.

There are some more complicated rules if only one of the parents object, but there is still a high burden for grandparents to get custody.

Grandparent rights: visitation

Under Virginia law, Visitation means being able to spend time with your grandchildren. Under old Virginia rules, a grandparent could only get visitation over the objection of the parents by showing “actual harm.” This means that the child would be harmed, whether psychologically or physically, if they were unable to see their grandparents. This was also a high burden for grandparents, and few were successful in meeting that standard.

Virginia Grandparents Rights: The New Law

Starting in 2021, grandparents now have an additional ability to ask for visitation under limited circumstances. If one of the biological parents pass away, and that parent wanted the grandparent to have visitation, then the grandparent can ask the Court for visitation. The idea behind the law is that whole families were being cut off whenever one of the biological parents would pass away. As a result, it is now easier in some scenarios to ask the Court for visitation, but not custody.

Why You Need a Custody Lawyer

As a result of all these changes, it is more important than ever to talk to a lawyer if you are interested in asking for visitation or custody rights for a grandchild. An experienced lawyer can help you navigate these complicated laws and present your case to the Court.

Virginia Criminal Defense Law: New Drug Overdose Law

Have you or a loved one been charged with a drug related offense after a 9-11 call for an overdose? The Virginia Legislature recently passed a new law that has been getting attention from the court system that may offer some protections. So what is this new law and what does it mean for drug related cases?

What is the New Virginia Drug Overdose Law?

The new law was approved on April 9, 2020. It provides that “No individual shall be subject to arrest or prosecution for the unlawful purchase, possession, or consumption of alcohol, possession of a controlled substance, possession of marijuana, intoxication in public, or possession of controlled paraphernalia” so long as certain criteria are met.

The criteria in order to be eligible under the new overdose law are:

1. Someone is experiencing an overdose;

2. Someone seeks emergency medical treatment;

3. The individuals remain at the scene;

4. The individuals identify themselves to law enforcement;

5. The only way the police knew of the incident was a result of the request for emergency medical treatment.

What Are Some of the Issues With The New Overdose Law?

Judges around Virginia are being asked to interpret this new law as a result of some vague phrasing by the Virginia legislature. Judges have ruled that in order to be eligible for protection under this new law, it must be a life-threatening and immediate need for medical attention. If the person suffering from a drug related overdose is not in an immediate, life-threatening condition, then they may not be eligible for protection under this new law.

Why Do You Need to Immediately Talk to a Criminal Defense Lawyer?

Drug related offenses can carry substantial punishments such as extended periods of incarceration in either jail or the state penitentiary. Many of the crimes you can be charged with are felonies, which can have long lasting consequences. If you have been charged with a drug related offense as a result of an overdose, you need to contact a criminal defense lawyer in your local area to discuss your rights in more detail, and whether you qualify for protection under the new law.

Virginia Real Estate Law: Deeds of Trust

If you own property in Virginia, you might have a mortgage, a lien of credit, or a loan against your property. Lenders formalize that arrangement by filing a document known as a “deed of trust” with the clerk’s office at the courthouse. So what is a deed of trust, and what are your protections if things go bad?

What is a Deed of Trust?

A deed of trust is a document that is recorded in a land record’s office that notifies prospective buyers or creditors that you agreed to pay someone money and that they now have an interest in your property. This notice is important, because it allows other lenders or prospective buyers to understand what the property may be worth. If the property gets sold, the person who has a deed of trust will also be paid from the sale of the property.

A deed of trust is typically removed after the sale of a home so long as the lender is reimbursed from the sale. This is done through a process known as “closing.” A buyer will typically get a new mortgage or find the money from some other lending institution to pay off the old deed of trust.

How long is a Deed of Trust good for?

Under Virginia law, a deed of trust is not necessarily always going to be valid. A lender only has so long to pursue the deed of trust before it becomes void. The amount of time a lender has to pursue a deed of trust depends on several factors including a) when the deed of trust was recorded, b) when the “maturity date” is on the deed of trust (or when it becomes due) and c) whether or not the lender was a proper lending agency.

A maturity date is the date when your loan becomes due. For example, if you have a thirty year mortgage that you sign in 2020, the maturity date would be in 2050. Generally speaking, a lender has ten (10) years from the maturity date. If the deed of trust does not have a maturity date, the amount of time the lender has is generally twenty (20) years from the date the loan is signed. Some lines of credit can be pursued forty (40) years after the date it is signed. It really depends on the type of deed you are dealing with.

There are some other exceptions that impact the amount of time a lender has to pursue the deed of trust, so if you have any questions it is generally a good idea to hire a lawyer.

Why you need a real estate lawyer.

If the lender has run out of time to go after your deed of trust because it is a very old deed, then you may be able to file a lawsuit to remove the deed of trust from your title search. This has the benefit of being able to keep more of the money from closing and increasing the value of your property.

If you have an old deed of trust and you are interested in selling your home, it is usually a good idea to have a real estate lawyer involved in the transactions. Our job is to explore any avenues that can help protect you during the sale process and maximize your return. Make sure to consult with a real estate lawyer if you are considering selling your property.

Virginia Real Estate Law: Evictions in a Pendemic

I have been receiving a lot of calls from landlords and tenants regarding evictions during the coronavirus pandemic. Different and changing opinions from the state government and the federal government have made the answer to this question difficult. As of June 14, 2020, there is a patchwork of rules which means, at least in some places, eviction cases can commence. In some local courts, they cannot. Federal law has also prevented certain types of evictions from going through.

So what are those rules, and what do you need to know about evictions in a pandemic?

Virginia Rules on Evictions in a Pandemic

On June 8, 2020, the Supreme Court of Virginia declared that there was still an on-going judicial emergency. The emergency order stated that all eviction cases were ordered to stop until June 28, 2020. However, some local courts have interpreted that order differently. For example, Fairfax General District Court has permitted the filing of eviction matters during this time period. As a result, the sheriff’s office had to issue a statement that they would not be proceeding with forceful evictions until the June 28th deadline.

Most other localities have decided to wait until June 28, 2020 before they will permit evictions to resume. There is a chance that the Supreme Court of Virginia or the governor extends this time period, but for now evictions are brought to a complete halt, regardless of the type of tenant a landlord has.

Federal Rules on Evictions During a Pandemic

There are several different rules from the federal level. The Department of Housing and Urban Development had initially created a sixty day ban on evictions of tenants in FHA-insured housing on March 18, 2020. 

Effective March 27, 2020, the CARES act created a one hundred and twenty day ban on evictions for tenants of certain “covered dwellings.” Therefore, some landlords are restricted from evicting their tenant until July 27, 2020. As with the state level, the federal government could extend that window depending on how things develop.

In order to be considered a covered dwelling, the landlord or tenant must be receiving certain types of federal aid. If you are a tenant facing an eviction or a landlord considering an eviction, and you are receiving federal aid of some kind, there may be a federal ban on the eviction.

Why You Need a Lawyer

All of these different regulations have made eviction proceedings extremely difficult to file and pursue. There are also penalties for the unwary if they file an eviction improperly during these bans. That is why if you are facing an eviction or are a landlord considering an eviction, you should talk to a lawyer to understand your rights and risks.