Are Personal Injury Settlements Considered Marital Property in a Divorce?

Couples going through a divorce can sometimes be involved in accidents or other events that cause injury. What happens when a spouse sustains injuries due to a third-party’s negligence, files a personal injury claim, and collects a substantial settlement? Will the other spouse be entitled to at least a part of the settlement amount if they are getting divorced?

Consider a scenario where you have collected or expect to collect a settlement for your personal injuries. In that case, you may want to understand whether these proceeds are considered marital property (which will be divided equitably between the spouses during a divorce).

The answer will depend on when the accident occurred and what the rest of the assets are. Judges must evaluate various factors to determine the property. The amount received in a personal injury settlement award could be deemed marital property, which is eligible for division between the two parties.

Marital property generally refers to all jointly owned assets obtained from the date of the marriage to the date of the separation, including income earned following the marriage. On the other hand, an inheritance or gift from anyone besides your spouse is categorized as separate property.

In a Virginia divorce case, property division can be a very tricky issue, and the arguments should be strategically crafted in your best interest. To understand whether your personal injury settlement award is marital property, consult an experienced Virginia divorce lawyer today.

General Principles

Under Virginia law, a personal injury settlement award may be categorized as marital property, irrespective of whether or not the spouse involved in the accident sustained an injury. In general, a judge will review the reason for your personal injury settlement award, which will establish whether or not your spouse is entitled to the funds you will collect.

  • If the personal injury settlement is paid to compensate for pain and suffering, this part of the award will not be deemed marital property. This rule is applicable to payments collected for any disfigurement, disability, or debilitation.
  • If the personal injury settlement is paid to compensate for out-of-pocket expenses and other damages, such as lost income or medical bills, the funds will be deemed marital property.
  • If the personal settlement award is paid to compensate a claim of loss of consortium from an uninjured spouse, this amount will not be included in marital property.

The above are general principles followed by Virginia courts. Notably, the party that claims that the funds should be considered non-marital property is responsible for providing evidence that the funds are separate.

Financial compensation represents vital support for victims of serious injuries due to another’s negligence. This type of compensation includes personal injury settlement awards, workers’ comp benefits, and disability benefits. Individuals who are unable to work can collect a more substantial share of the injury compensation and marital assets.

Co-Mingling Personal-Injury Settlement Awards

Lawyers must consider whether their clients have co-mingled money from personal injury settlements with marital assets. If the funds are co-mingled with other marital assets, a personal injury settlement award for pain and suffering may be seen as marital property during divorce proceedings.

In case a client wants to ensure that the proceeds from their personal injury settlement award are not considered marital property, they should use a separate account to deposit the funds. The court will determine whether the funds are to be co-mingled with the marital property during the final dissolution. Therefore, lawyers should educate their clients on the repercussions of co-mingling funds from personal injury settlements.

What should my Divorce Lawyer communicate with my Personal Injury Lawyer?

In cases where you arrive at a pre-suit settlement agreement with an insurer, they will usually require you to sign a document known as a release form. The precise wording and matter contained in a release form will depend on the settlement’s specific circumstances and who is drafting the release. This form will contain a specific dollar amount, representing the full and final amount that the insurer will pay you in exchange for signing the release form.

The release form will often not contain an itemized breakdown of the total amount detailing which portion is assigned to which damages. For instance, in the release form, it might be stated that the insurer will pay you $70,000 in exchange for the execution of a general release. They will not specify how much of the $70,000 is compensation for medical bills, pain, and suffering, income loss, loss of earning capacity, etc.

When the court attempts to determine which portion of that $70,000 is marital property subject to division between the spouses, the lack of the settlement amount breakdown can prove problematic. For this reason, if you are injured due to a third-party’s fault during divorce, it is best to inform your personal injury lawyer of your ongoing or intended divorce case.

Speak to the Qualified Attorneys at Olmstead & Olmstead Today

Dealing with an injury accident can be challenging for both spouses. In fact, it may even be a factor exacerbating the divorce. If you sustained injuries in an unfortunate accident and your ex-partner or spouse wants a part of your settlement, the skilled and compassionate attorneys at the law offices of Olmstead & Olmstead, P.C., can help.

Our experienced lawyers will answer any questions you may have on the various aspect of a personal injury claim and how it may relate to an upcoming divorce. We will be happy to arrange a no-obligation initial consultation to establish whether you or your loved one is entitled to a portion of compensation for your injuries. For a free initial consultation with an experienced attorney, call today at (703) 361-1555

How Social Media Activity Can Impact your Legal Case

In today’s digital world, most of us have a seemingly insatiable desire to stay connected. For many, social media is an integral part of their daily life. They log into their favorite social media platforms first thing in the morning and several times throughout the day. They post status updates, read and comment on other peoples’ posts, and try to stay up to date on all of the latest things that are happening.

Social media activity is generally harmless – as long as you do not allow it to consume too much of your life. When someone is involved in a legal case, however, social media becomes more than just a fun way for someone to stay connected with their family and friends. Electronic communication leaves a permanent digital fingerprint, and the things you post and comment on when you are on Facebook, Instagram, and other platforms can be used against you by the other side.

Social Media Activity During a Personal Injury Claim

If you were injured because of the negligent actions of another party, you may be pursuing damages against the responsible party and/or their insurer. For example, you got hurt in a car crash after the other driver ran a stop sign. The other driver was clearly at fault, so what would be the harm in continuing to be active on social media while the claim is ongoing?

Maybe in this case there is no dispute over who caused the accident, but there could still be a lot of questions about the extent of your injuries. The insurance company for the other side is going to want to mitigate their losses, so they will look for any reason to claim that your injuries are not as bad as you say they are.

How does this relate to social media? Well, let’s say you are claiming noneconomic damages such as pain and suffering and emotional distress, but you post a photo of you and your family smiling and relaxing while on vacation. Or maybe you decide to make some optimistic remarks to reassure those who are concerned about your health that you are feeling a lot better and you are on the road to recovery. You can see how these types of posts could be distorted by the other side to argue that your noneconomic damages should be reduced.

Social Media Activity during a Family Law Case

In a family law case such as a divorce or child custody proceeding, any social media posts relating to the case are ill-advised. For example, posts that bash your spouse exceedingly can make you seem petty and are likely to be looked at unfavorably by a court. Posts that show you being involved with another party could also be damaging, especially if your children show up in the pictures as well.

It is always best to stay silent as much as possible during a family legal proceeding, and this applies not only to social media activity, but to text messages and other private messages as well. All of this information is discoverable and admissible in court, so do not engage in any digital activity that you don’t want the whole world to see.

Electronic Activity during a Criminal Case

If you are facing any type of criminal charge, you can absolutely count on law enforcement to comb through every piece of your digital activity that they can get their hands on. This could include not only your social media activity, but everything else that is contained on your cell phone, tablet, or computer.

Even if these devices are password-protected, that may not be enough. Criminal suspects can be served with a demand to turn over their passwords, the failure of which could lead to additional penalties. And even if you do not turn over your passwords, law enforcement agencies have some of the most up-to-date technologies to be able to access the information within these devices through other means.

The bottom line is that if you are involved in a criminal case, you have absolutely no expectation of privacy with regards to any of your electronic activity. All of it can be discovered one way or another, even files that you thought were permanently deleted, and it can all be used against you by the prosecution.

Always Follow the Advice of Your Attorney

The very best practice for anyone involved in a legal case is to suspend your all electronic activity immediately and wait until after the case is resolved before you resume it. But that said, we know that many people cannot quit everything and totally unplug from the digital world.

At the very least, keep your activity to a minimum, and closely follow the advice of your legal counsel on this and other important matters. Your attorney knows the specifics of your case and what activities could jeopardize it. By doing what they tell you to do, you will be in the best possible position to secure a favorable outcome.



Divorce During the COVID-19 Pandemic

Divorce is often a stressful and emotional experience. Even between couples who mutually decided it was time to go their separate ways. Getting divorced or co-parenting during a global pandemic doesn’t make things any easier. National Public Radio addresses this in their May 6th article ‘Six Feet Of Separation: Stories Of Parenting And Divorce During COVID-19‘.

Virus Presents Unique Challenges

WBEZ’s Carrie Shepherd interviewed two couples for NPR to discuss the unique challenges couples face when divorcing and co-parenting through a pandemic. For Brian and Liz Urban things had been going about as well as one can expect in a divorce.

When the couple decided to separate, Brian moved out of their marital home. However, that was short lived. With the COVID-19 pandemic they decided to move back in together. They felt that with the risk of exposure to the virus it was more safe to continue cohabiting. Shepherd writes, ‘Liz … said it was helpful to have both parents there to help Oliver navigate the confusing and unsettling time the pandemic caused,’ and cites that the couple finalized their divorce in March and now live separately again. The couple was able to finalize their divorce online.

Shannon, however, reported that her divorce was not going as smoothly. ‘After back-and-forth discussions about who would leave the house, Shannon, whose divorce is still pending, said her husband agreed to move out. Then, financial instability from the pandemic forced them to continue to live together with their two sons. Her husband’s company was doing layoffs, and new job prospects are difficult when unemployment numbers continue to skyrocket.’ Shannon’s experience is one shared by many who are divorcing in these uncertain times.


Whether divorced or separated, co-parenting is challenging. The issues that created tension in your marriage are unlikely to go away just because you live apart. The pandemic is only making matters more complicated.

‘For separated or divorced parents, the coronavirus can create questions about joint custody agreements, such as whether it’s best to keep children isolated in one home or move them between homes,’ says Shepherd. Many states have made exceptions to their shelter-in-place orders as it relates to custody agreements. For example, in Texas the orders ‘specifically state that ‘traveling to exchange the children is not a violation of the orders‘.

Ideally, parents will discuss the risks and come to their own agreement. Unfortunately many parents do not see eye to eye on how best to protect their children during the pandemic. Judges warn parents that if they fail to uphold the custody agreement they end up with a ‘motion to enforce’. Remember, you always have a right to your court ordered visitation. If your former spouse is not keeping to the agreement, you should speak with your attorney.

Depending on your circumstances, you may have a right to temporarily withhold visitation. J. Alex Jacobson, a Chicago mediator, told Shepherd, “Let’s say, for example, somebody’s an ER doc and the other parent is extremely concerned about what protocols are being implemented to protect the kids,” depending on the circumstances, you may have a case. You should speak with an attorney specializing in family law about your concerns. They will be able to answer your questions and help ensure your children’s best interest is served.

Have Divorces Increased With COVID-19?

It is hard to tell. Right now many states are seeing a decrease in the number of divorce filings. This may be due to a number of factors. Divorce is expensive and with millions out of work or under employed. Couples may simply not be able to afford to divorce right now. Others may feel that it would only make an already stressful time worse and may choose to wait. Vincent Stark, a family law attorney in Chicago, told Shepherd that divorce during the COVID-19 pandemic is similar ‘to what usually happens at the first of the year — divorces spike because couples wait until after the holidays to file’.

For couples who were already struggling, quarantine may be the ‘final straw’. Even those who prefer to spend most of their time at home are feeling the effects of long term confinement. Many are also trying to balance working from home with the challenges of distance learning. Sadly, not everyone is coping well. ‘No one was prepared for this. People in difficult marriages tell me that they feel trapped, want an escape, struggle with the stress of uncertainty about the future, anxiously fear the disease, are climbing the walls with boredom, and feeling lonely,’ Ann Gold Buscho Ph.D. wrote for Psychology Today. The continued shelter-in-place orders are unlikely to do struggling couples any favors. Lawyers expect that divorce rates will jump once the quarantine is over.

Divorce During COVID-19

Couples who choose to move forward with divorce during the coronavirus pandemic may find the process is particularly challenging. To follow shelter-in-place orders, lawyers and judges are using teleconferencing and Zoom. Anyone who has used these technologies knows that they aren’t always user friendly. “The judge couldn’t dial in and when he did dial in, he was on mute,” Liz Urban told Shepherd. They switched to a Zoom call and experienced further challenges. Finally, she walked down the hall to share her soon-to-be ex’s camera to finish the proceedings.

With judges and lawyers working from home in many instances, their availability may also be reduced. This can delay proceedings or stretch out the divorce process. Be prepared that your divorce may take longer than usual while shelter-in-place orders remain in effect.

Seek Legal Advice

Couples may try to save money by self-representing their divorce. While this is possible, it is not recommended, even for couples who are splitting on good terms. Divorce is a stressful, emotional, and complicated process. The pandemic has only made matters more difficult to navigate on your own. Hiring an experienced attorney will help you protect your assets and parental rights. They will also ensure that the custody agreement and other arrangements all serve the best interests of your children. The lawyers at Olmstead & Olmstead, P.C. are experts in criminal, personal injury, and family law. They will be happy to answer any questions you might have about getting a divorce during the pandemic.

Call Olmstead & Olmstead, P.C. at (703) 361-1555 for more information about divorce during the COVID-19 pandemic.

What Is The Process For Child Custody In Virginia?

Getting a divorce is stressful on its own. The situation becomes much more complex when it involves children. During your proceedings you will have to decide on a number of logistical issues, the biggest of which is a child custody agreement. The process for child custody in Virginia can be intimidating if you do not know what to expect.

Filing For Custody

The first step in the process for child custody in Virginia is to file for custody. To file you must address the following:


Custody is determined by the child’s state of residence. To file for custody in Virginia, the child must have lived in the state for at least 6 consecutive months before filing. If the child has not lived in Virginia for the preceding 6 months you must file for custody in that state.

Schedule An Appointment

You will need to contact your county’s Juvenile and Domestic Relations District Court to see which forms you will need and how to get them. Some forms may be available online, others you will need to collect at the courthouse. Some courts may require you to schedule an appointment to pick them up.

Prepare Your Petition

You will also need to prepare a petition for custody. Your petition should emphasize the factors Virginia uses to determine custody. Virginia family law dictates that judges consider the following when determining custody:

  • Child’s age, physical, and mental condition
  • Parent’s age, physical, and mental condition
  • Parent-child relationships
  • Child’s relationships with siblings and extended family
  • Parental history as a caregiver
  • Parental willingness to support parent-child relations with the other parent
  • Child’s preference 
  • Any history of family abuse

There are templates available to help you write your petition. A family law attorney, such as those at Olmstead & Olmstead, P.C. will be happy to help you write your petition. Hiring an experienced family law attorney will help ensure the best outcome for your custody case. This is especially important if your case involves domestic abuse or supervised visitation.


You will need to prepare a summons, which notifies the other parent that you are filing for custody. They must respond by the deadline or the court proceedings may continue without them.


You will also need to pay any associated fees to complete your filing. If you cannot afford these fees you can ask the court for a waiver.

Serve Papers

A law enforcement officer or process server will need to serve the documents to the other parent. If they live out of state, the court clerk can mail them out. If you do not know where the other parent lives you may need to publish a notice in the newspaper. This shows the court that you made all reasonable attempts to notify the other parent. You will also need to file a document with the court to verify this.

Court Summons

The next step in the process for child custody in Virginia is to answer the court summons. You and the other parent will need to appear in court on the date listed in the summons. If the other parent fails to respond the case may proceed without them. In the summons you will receive the date of your Custody Hearing.

Temporary Custody

It may be necessary to establish a temporary custody agreement. This is not a permanent agreement. It simply determines who will have custody of the child until after the custody hearing. The custody hearing may determine that the other parent will have custody. In which case they will take custody of the child after the hearing. If the family cannot agree on a temporary custody agreement, the judge will decide.

Custody Hearing

In the custody hearing you will make your case for why the judge should award custody to you. These can be very emotional proceedings but it is important to remain calm and impartial. The primary concern here is for the welfare of the children involved. How you present yourself and your case can have a major impact on the outcome of your hearing. Depending on the nature of your case, your hearing may take place over a period of 3 – 4 days. In more serious cases the hearing may take more than a week.


Each parent will have an opportunity to state their case. The petitioner will present their case first. You should come with a prepared statement, list of witnesses, evidence, and a list of questions to support your case.


To prove your case against the other parent you will need to provide evidence. The laws surrounding the collection and presentation of evidence are very complicated. What you feel is concrete evidence may not be admissible. An experienced family law attorney is familiar with these laws. They will help build your case with evidence the court will accept.


Each side will have the opportunity to call witnesses to support their case. Character witnesses are friends, relatives, teachers, or neighbors. They will give their opinion of your fitness to be the custodial parent.

Your case may require you to call an expert witness to support your case. These are professionals who can speak to certain issues in the case. Their testimony may be pivotal in proving why the other parent should not get custody.

If the other parent has lied in their testimony you may need to call an impeachment witness. An impeachment witness is someone who can discredit the other parent or their witness’s testimony.

You and the other parent will have an opportunity to examine and cross-examine witnesses. This can be a delicate balancing act, and if you aren’t careful, you can hurt your case more than help it.

Closing Arguments

Not all court proceedings will have an opportunity for closing arguments but you have one prepared. You will make your last statement about the facts of the case and why the court should decide in your favor. If you are the petitioner you you will present your closing arguments first. The other parent will present theirs, and then you will have a chance to respond.

Final Decisions

The judge will make their decision based on the facts and testimony presented in the trial. You can only appeal this decision under specific circumstances. Because it is difficult to appeal, it is important to make sure you present a strong case. An experienced family law attorney can help.

When should I hire a lawyer?

We recommend hiring a lawyer as soon as you decide to file for custody. While it is possible to self-represent your case, family law is complicated. It is important to know your rights so you can ensure they are properly upheld, and your child’s best interests are served. At Olmstead & Olmstead, P.C. we specialize in criminal, personal injury, and family law. Our experienced attorneys will walk you through every step of the process for child custody in Virginia. We promise to work tirelessly to get the best possible outcome for you and your children.

Call  Olmstead & Olmstead, P.C. at (703) 361-1555 for more information about the process for child custody in Virginia.


Can Child Support be Modified because of a Disability?

When child support is awarded at the conclusion of a divorce or parentage case, support payments are firmly established. Child support is set based on the parent’s ability to pay and the best interests of the child(ren), with the goal of providing the same level of support (or as close to it as possible) as the child(ren) received when the parents were together. A parent cannot stop making full payments on their own; they must go back to court to seek a modification.

When the parent who is responsible for child support becomes disabled and is no longer able to work, there is a strong likelihood that they will not have the financial means to continue paying the same level of support as when they were working. Many individuals in this situation often ask, “can child support be modified because of a disability?”

The short answer to that question is “probably”, but as always, it depends on your specific circumstances. Modifications can usually be granted when there is a significant decrease in income; but you cannot assume that this will be the case, and you still need to obtain approval from the court before your child support payments can be formally modified.

Before going straight to the court, however, there are some questions you should answer and potentially some other options to look at:

What Type of Disability Payments will you be Receiving?

Since your change in income is the primary determining factor the court will look at in deciding whether or not to modify child support, one of the first questions that will be asked is how much will you be getting in disability, and follow up to that – how will your disability income compare with your current level of income?

The amount you receive in disability will be determined largely by where you are getting your benefits from. There are several potential sources of disability income:

  • A Private Disability Insurance Plan: If you have disability insurance that you purchased privately, this will usually pay you somewhere between 60% and 80% of your current take home pay (after taxes). If you have good coverage that is paying more toward 80% or higher, then the court will probably not modify your child support obligations all that much.
  • Disability Insurance through your Employer: If you have disability coverage at work, the benefits are usually not quite as good as the average private plan. Generally, you can expect to get about 50% of your take home pay on the low side, and upwards of 80% on the high side.
  • Workers Compensation Insurance: If you suffered a qualifying work-related injury or illness, you may be eligible for workers’ comp benefits. If approved, you should receive two-thirds of your pre-tax income.
  • Social Security Disability Insurance (SSDI): Social Security Disability pays benefits based on a complex formula, and it is usually significantly lower than your current income, especially if you are presently earning several thousand dollars a month or more. If you have a high income now and all you will receive for your disability is SSDI, you may have a strong argument for a child support payment modification.
  • Supplemental Security Insurance (SSI): SSI is a means-tested disability program for low-income claimants. Payments are very low compared to other programs, generally only enough to cover basic living needs. If SSI is going to be your only source of income, you will probably not be able to afford much (if anything) for child support.

Can you Work Something Out with the Other Parent?

If the other parent of your child is reasonable, you might be able to negotiate an arrangement with them rather than having to argue your case in court. Explain to them that you are no longer able to work, and what the difference in income will be now that you are disabled. You may even want to offer to spend extra time caring for your child or children in exchange for a lower support payment. If you are able to agree to something, make sure to have it formalized for your protection. Speak with an experienced family law attorney to have the agreement written up and brought to the court for approval.

Can your Children Receive Dependent Benefits?

Another option you can look into is whether or not your children can qualify for dependent benefits through the Social Security Administration (SSA). This may be possible if you are receiving SSDI benefits and your children are under 18, disabled, or 19 years old and full-time college students. If you are able to get your children approved for dependent benefits, the court may subtract the amount your kids are receiving from your child support obligation.

Have Further Questions about Child Support and Disabilities? Contact a Skilled Virginia Family Law Attorney

Child support can be a contentious and emotionally charged issue, and the courts have strong enforcement mechanisms in place to ensure that parents make their payments. If you have had a significant change in circumstance since your divorce or parentage case was finalized and you want to seek a child support modification, you need a seasoned family law attorney in your corner advocating forcefully for your rights and interests.  Call Olmstead & Olmstead today at 703-361-1555 to schedule a personalized consultation. You may also message us through our web contact form or visit our office in Manassas, VA at your convenience.

Making Healthcare Decisions for Children of Divorce

When there is a divorce involving children, the parents often have vehement disagreements about various parenting issues. One of the most common areas in which parents may not see eye to eye is with the health care decisions that must be made. Before the divorce is finalized, they might be able to agree on whose health insurance policy the children will be under, but when a specific issue arises, they often have different ideas about how it should be addressed.

Sole vs. Joint Custody in Virginia

The first consideration when there is a disagreement about a health care decision on behalf of the child is which parent has custody. There are two different types of child custody; physical custody and legal custody. Physical custody addresses which parent the child lives with primarily, and how often the non-custodial parent is able to visit the child. Legal custody deals with the ability of parents to make major decisions that affect the child. Healthcare decisions would fall into the area of legal custody, because it would be in the “major decision” category.

When One of the Parents Has Sole Legal Custody

If one of the parents has sole legal custody, then they are able to make decisions about routine medical care (e.g., physicals, dental checkups, eye tests, etc.) without consulting the other parent. In addition, either parent can make a decision about emergency medical care while the child is with them. However, if this is the parent who does not have sole legal custody, he or she must inform the other parent about the medical treatment the child received as soon as it is reasonably possible.

When Parents have Joint Legal Custody

It is becoming increasingly common in Virginia and throughout the country for parents to share legal custody of their children. The default position of the family courts is that it is generally in the best interests of the children for both parents to be involved in their lives. So, even in situations where one parent has primary physical custody of the child, they often have joint legal custody; giving them equal decision-making authority over areas such as education, religious upbringing, extra-curricular activities, and health care. 

In some cases, one parent may be given final decision-making authority over certain areas, with other areas going to the other parent. For example, if religious upbringing and education are more important to the mother and the child is on the father’s health insurance policy, the mother may decide which religion the children will be brought up and which school they will go to, while the father may to have decision-making authority for medical treatment.

In many joint custody arrangements, however, the areas of decision-making are not as well-defined, and it is expected that the parents will consult each other and work cooperatively and in keeping with the child’s best interest. And while they might start out with this intention, specific situations may come up in which a major disagreement may arise.

When the Parents Can’t Agree on Medical Treatment

Disagreements over healthcare decisions can lead to a standoff between two parents with the equal decision-making authority, putting professionals who are just trying to do their jobs in the middle of a parenting dispute. For example, the child injures his arm playing football. The mother wants the child to have surgery, but the father wants to pursue other treatments. Both have consulted equally-competent medical professionals who support their point of view.

How does this situation get resolved? Most likely, in one of two ways; the parents either work together to reach a solution both of them can live with, or one of the parents (probably the mother in this case) petitions the court to obtain full legal custody so she can go forward with the surgery. When the court gets involved, the results are unpredictable, and they depend largely on the viewpoint of the judge presiding over the case and the strength of the arguments presented by both sides.

Involved in a Child Custody Dispute in Virginia? Contact an Experienced Family Law Attorney

Parents with joint legal custody should be committed to working together to decide important parenting matters (based on their children’s best interests). And before going back to court, they should exhaust all other avenues and try to work out any disputes on their own. That said, there are times when there is little choice but to petition the court for a modification of the current custody arrangement. When that situation arises, you need strong legal counsel in your corner advocating forcefully for your rights and interests, and for the best interests of your child.  To schedule an initial consultation with the seasoned family law attorneys at Olmstead & Olmstead, call us today at 703-361-1555. You may also message us through our web contact form or visit our Manassas, VA office in person at your convenience.

What are My Rights as an Unwed Parent in Virginia?

When a child is born to an unwed mother, the father has no legal rights initially. Without being married to the child’s mother, there is no automatic presumption under the law as to who the father is. For unmarried fathers to establish parentage, the father must voluntarily declare his paternity in writing, and if it is disputed, prove he is the father through a DNA test.

Voluntary Acknowledgement of Paternity

If there is no dispute between an unmarried couple that they are both parents of a child that is being born, the easiest way for the unmarried father to establish parentage is to fill out a Voluntary Acknowledgement of Paternity (AOP) at the hospital at the time of the child’s birth. There is no cost to execute an AOP form at the hospital, and it does not impact any government benefits that either parent may be receiving. By executing and an AOP form at the time the child is born, the father’s name can be added to the birth certificate right away.

If you did not execute an AOP form at the hospital or birthing center, the form can be filed later with the Virginia Office of Vital Records for a small fee. Once the AOP form is properly filed, you become the legal father of the child, and your name is added to the child’s birth certificate.

Involuntary Establishment of Paternity

If there is any dispute about who the father of the child is, establishing paternity may require a court action. A Petition to Establish Paternity can be filed with the appropriate court by the mother, father, child, or the state of Virginia (if the child is receiving public assistance). For example, if the petitioner claims to be the father and the mother denies this, the petitioner can request that the court orders DNA testing.

DNA samples are taken from the mother, alleged father, and child and taken to a laboratory for analysis. This can establish with nearly 100% certainty whether or not the man being tested is the father of the child. If paternity is successfully established, the father may be required to pay child support, but he may also petition the court for child custody and visitation rights.

Child Custody and Visitation for Unwed Parents in Virginia

In many states, when there are unmarried parents, the default position of the court is to give custody to the mother unless the father takes action to gain custody. In Virginia, once paternity is established, the courts do not favor one parent over the other. Instead, they look at the best interest of the child.

That said, the court does give a lot of weight to the current situation, and who the primary caretaker of the child is now in determining who should have custody. So, assuming the mother is currently the caretaker of the child and has been for a while, the father would have to prove that she is not a good parent in order to take custody away from her.

If you have established paternity early on in the child’s life (e.g., within the first few years) it may be possible to obtain shared custody or at the very least, liberal visitation rights. Shared custody refers to physical custody of the child, and this is a co-parenting arrangement where both parents have the child for at least 91 days of the year.

There is also the matter of legal custody.  This refers to which parent has the right to make important decisions on behalf of the child; such as in the areas of healthcare, education, religious upbringing, and extracurricular activities. Parents may have joint legal custody, in which they must confer with each other on these important decisions, even if one parent has sole physical custody.

Speak with an Experienced Family Law Attorney

Unwed parents, especially fathers, face some challenges when they want to be involved in the lives of their children. Establishing paternity can be a complicated process, especially if it is disputed. And once paternity is established, you will often need to go to court to petition for custody or visitation rights.

At Olmstead & Olmstead, we understand the frustrations unmarried parents often face when they are trying to do what’s best for their children. We work closely with our clients, putting our experience to work to help them develop the most practical, effective, and cost-efficient legal solutions.   Call us today at 703-361-1555 to schedule a consultation. You may also message us through our web contact form or visit our office in Manassas, VA at your convenience.

Visitation and the Holidays

The holidays are coming up, and this is the time when families want to spend as much time as they can with each other. This can create tension among divorced couples or couples living separately who have children together. Naturally, both parents want to have the child(ren) for the holidays, and the kids usually want to spend time with each parent.

When one parent has custody of the children, the other parent almost always receives visitation rights. There are rare cases involving issues such as abuse where a court may deny visitation or order limited/supervised visitation. Assuming this is a typical child custody/visitation arrangement in which the non-custodial parent is entitled to liberal visitation, a holiday visitation schedule should be put in place as part of this arrangement.

Holiday visitation is not a “one size fits all” arrangement. Each family has its own traditions, and the visitation schedule should be one that takes these and other specific circumstances into account. The arrangement should be fair to both parents, and hopefully one that everybody can agree on.

Here is an example of what a winter holiday visitation schedule might look like:

  • Thanksgiving Week (defined as the Wednesday before Thanksgiving through the Sunday after): The child(ren) spend this week with their mother in even-numbered years, and their father in odd-numbered years.
  • Christmas Eve through Christmas Morning: This period is spent with the mother in odd-numbered years, and the father in even-numbered years.
  • Christmas Morning through the Day After (12/26): This period is spent with the mother in even-numbered years, and the father in odd-numbered years.
  • New Year’s Eve through New Year’s Day Morning: This period is spent with the mother in odd-numbered years, and the father in even-numbered years.
  • New Year’s Day Morning through the Day After (1/2): This period is spent with the mother in even-numbered years, and the father in odd-numbered years.

This schedule would be similar for the other holidays during the year, such as Easter and the Fourth of July, with the mother and father having the kids during alternating years. A schedule would also be worked out for spring break, summer break, and the parents’ and children’s birthdays. Of course, the visitation schedule during holidays, school breaks, birthdays, and other special occasions must take into consideration various factors; such as the work schedules of each parent, the location of the two parents, how far away they live from each other, and many others.

When Holiday Visitation Conflicts with Regular Visitation Schedules

One common question that often comes up with visitation and the holidays is what happens when the holiday visitation conflicts with the regular visitation schedule? For example, a typical visitation schedule might have the kids spending every other weekend with each parent; e.g., Weekend A is spent with Mom, Weekend B with Dad, Weekend C with Mom, Weekend D with Dad, and so on. Referring back to the winter holiday visitation schedule example, what if this is an odd-numbered year and the father has the kids over Thanksgiving weekend, but Thanksgiving weekend falls on Weekend A, which belongs to the mother?

In this scenario, the holiday visitation schedule takes priority over the existing schedule. This means that the father would have the kids over Weekend A, because this is his year to have the kids over Thanksgiving. The next question is what happens the following weekend? Does the father get the kids again because Weekend B is his regular weekend? With most visitation arrangements, the answer would be “yes”.

This may seem unfair, but if you take away the father’s regular weekend for visitation, he would not be receiving any extra holiday time like he should. Also, this is likely to even out in future years. In other words, there will probably be a weekend in the future that is one of the father’s regular weekends, but according to the holiday visitation schedule, the mother gets the kids that weekend.

Visitation and the holidays can often raise questions and cause disputes, especially if the holiday schedule and the regular visitation schedule have conflicts. When these issues come up, it is important to take a step back and try to work out a reasonable solution with your ex. Remember, the holidays are a time when families are supposed to come together, so try to do what’s best for your kids, even if you have to make some small compromises along the way.

Can I Modify my Child Support in Virginia?

During a Virginia divorce involving children, child support is usually spelled out in the property settlement agreement. In paternity cases in which the parents were never married, the courts may order the non-custodial parent to pay support. The amount of support paid is calculated based on several factors; such as the monthly gross income of each parent, number of children, spousal support paid by the non-custodial parent, and other factors.

After a divorce is finalized, circumstances often change substantially. Ex-spouses get remarried, move to different parts of the state or country, or go back to school to further their career. Children grow up into teenagers and later become adults.

Some changes may cause the non-custodial parent to struggle with their child support payment or provide the means to pay a higher amount. Examples include:

  • A job loss, promotion, or new job;
  • A significant increase in health insurance costs;
  • A significant increase in child care expenses;
  • A disability or severe health condition.

Virginia law recognizes that significant changes often occur after a divorce, and the law allows either parent to petition the court to modify child support payments if circumstances warrant it. In general, you must wait at least three years from the time of the original child support order before you can request a modification.

If the petitioner can cite a special circumstance, it may be possible to request a modification before the three-year period has elapsed. Examples of special circumstances may include:

  • An increase or decrease of one of the parents’ incomes of at least 25%;
  • The need to add a child to the support order due to birth or a custody change;
  • A child is no longer eligible to receive child support, or to receive the same amount of support;
  • One parent is a member of the National Guard or military reserve and is called to active duty, causing a significant change in income.

Failure to Pay Existing Child Support before the Order is Modified

If you are looking to modify your child support because you are not able to make the current payments, it is important to remember that you cannot just stop paying and expect the issue to go away. It may not seem fair, but whether you can afford to or not, you are required to pay the amount stated in the current child support order until it is modified by a court.

If you fail to pay child support during the interim, you could face severe consequences; such as wage garnishments, liens on real estate or personal property, legal fees, and even criminal charges. Child support is also one of the few types of unsecured debts that cannot be discharged through Chapter 7 bankruptcy. If you cannot pay all of your support right now, pay what you can afford and speak with an experienced lawyer ASAP about getting your child support modified.

Is an Oral Modification Agreement Good Enough?

One common mistake made by some parents is to try to modify the child support payment on their own. This happens frequently in cases when the non-custodial parent cannot afford to pay. For example, the father is laid off from his job and tells his ex he can no longer afford $1,000 a month in child support. His ex agrees to let him pay $500 for now. 10 months later, the father gets a new job and resumes paying $1,000 a month, and his ex tells him that he also owes $5,000 for the 10 months he did not pay the full amount of support.

In this scenario, the father never put anything in writing and never went to the court for approval of the child support modification. Because of this, there is very little he can do if his ex decides to force him to pay back child support. While it is okay for parents to agree between each other to modify support payments, be sure to protect yourself and have the agreement approved by the court.

Speak with a Seasoned Virginia Family Law Attorney Today

Child support is a complicated issue that can be difficult to understand. When circumstances change, and you believe it is necessary to modify the level of support you are paying or receiving, you need skilled legal counsel in your corner strongly advocating for your rights and interests. At the Law Offices of Olmstead & Olmstead, P.C., we have helped many clients in Virginia who have needed a child support modification. We can evaluate your situation and develop the most practical and effective strategy toward obtaining a favorable result.

For a personalized consultation with one of our experienced attorneys, contact our office today at (703) 361-1555.


Can I Modify my Alimony in Virginia?

When a marriage is dissolved in Virginia, spousal support is often awarded by court decree or negotiated into the settlement. Also referred to as alimony or spousal maintenance, spousal support is especially common in cases in which one spouse earns all (or the majority of) the income and the other does not have the skills or education to support themselves. Alimony may be temporary (for a specified length of time) or permanent, depending on the circumstances of the case.

As time goes by, circumstances often change, and one party (typically the payor spouse) wants to go back and modify the amount of spousal support they are required to pay. Examples may include a job loss, disability, illness, or another type of financial hardship. This is referred to as a “material change in circumstance.”

A new Virginia law that took effect July 1, 2018 made it easier to modify alimony when the circumstances warrant it. Under the new law, there are two major changes to the spousal support modification guidelines:

When the Settlement Agreement is Silent about Modification

Prior to July 1, if a divorce decree or marital settlement agreement was silent about whether or not spousal support could be modified, the presumption of the court was that an alimony award was fixed and not modifiable. Under the old law, many divorcing couples signed spousal support agreements with the assumption that they could be revisited later on if needed, only to find out that because the agreement did not address the issue, they were unable to modify the amount of alimony they were paying.

Virginia Senate Bill 614 amended the law to require explicit language in a separation agreement for spousal support to be non-modifiable. In other words, unless the agreement explicitly states that the alimony award is non-modifiable, the presumption will be that alimony can be modified based on a material change in circumstances. All agreements executed after July 1, 2018 are subject to these new guidelines.

Modification of Spousal Support in Retirement

In addition to clarifying the issue of modifiability, the new law allows retirement to be considered a material change in circumstance for the purposes of modifying an alimony award. The court is now required to consider six new factors with regards to modification of spousal support and retirement:

  • Whether or not retirement was anticipated and specifically considered at the time the alimony was awarded;
  • The terms and conditions of the retirement (e.g., voluntary or mandatory);
  • How retirement affects the incomes of both parties;
  • The duration and amount of alimony that has already been paid;
  • The age and health of both parties;
  • The property and assets of both parties.

A Word about Alimony and Taxes

At the end of 2017, Congress passed sweeping tax reform legislation. While most of the headlines focused on the changes to the corporate tax rate, hidden in this legislation was a major change to how alimony is treated for tax purposes. Previously, payor spouses were allowed to deduct their support payments on their federal income taxes, and payee spouses were required to claim it as income. The new law does away with the deduction for payor spouses and the requirement for receiving spouses to claim the income.

The changes in tax law at the federal level have the potential to harm both the payor and the payee spouse, depending on the specific financial circumstances of each party. The one piece of good news is that this provision of the tax code does not take effect until December 31, 2018. Any divorces finalized up until that date are subject to the previous alimony and tax laws, and divorces finalized on January 1, 2019 and thereafter are under the new laws. If you are considering divorce or have already begun the process, insist that your spousal support agreement be completed before the December 31 deadline.

Speak with an Experienced Virginia Divorce Attorney Today

If you are currently considering a divorce or you want to modify the alimony you are paying from a previous settlement, it is important to speak to an attorney with in-depth knowledge of these issues. At the Law Offices of Olmstead & Olmstead, P.C., we have extensive experience representing clients in divorce cases involving even the most complex financial issues. We have helped numerous clients negotiate favorable spousal support agreements and when necessary, petition the court for post-decree alimony modifications. We can thoroughly assess your circumstances to determine your best legal options, so you can make an informed decision.

For a personalized consultation with one of our skilled attorneys, contact our office today at (703) 361-1555.