The Tax Consequences of a High Asset Divorce

Getting a divorce can be a highly stressful and emotionally taxing process. Apart from having to come to terms with a failed marriage, you also have to deal with the tax issues stemming from the divorce – especially if you and your spouse happen to own a substantial amount of assets.

Division of Assets in a Virginia Divorce Case

In Virginia, marital assets are divided based on the doctrine of equitable distribution, which means the assets are to be divided in a fair and equitable manner – not necessarily equally. Depending on various factors, you or your spouse could get the larger share of the property. These factors include:

  • Earning capacity of both spouses.
  • Contributions (monetary as well as non-monetary) made by both spouses towards the acquisition and upkeep of marital property.
  • Debts and liabilities of both spouses.
  • Length of the marriage.
  • Factors that led to the divorce (whether one of the spouses was at fault).

It should be noted that the term ‘marital property’ refers only to those assets which were:

  • Acquired after the marriage.
  • Acquired by either of the spouses before the marriage but increased significantly in value after the marriage due to the contributions made by either or both of the spouses.

The different types of marital property that may end up being divided in the event of a divorce include:

  • Residential properties
  • Vacation homes
  • Bank accounts
  • Retirement accounts
  • Stock market investments
  • Life insurance policies
  • Automobiles
  • Jewelry
  • Businesses
  • Trusts
  • Artwork
  • Collectibles
  • Furniture
  • Intellectual property

Tax Issues to Consider in a High Asset Divorce

Filing Status

One of the immediate consequences of a divorce is that you will no longer be able to file taxes jointly. This means that you will have a different tax filing status – most likely either single or head of household – which will have various tax implications.

Capital Gains Taxes

Some of the marital property you own – real estate property and stock investments in particular – might have to be liquidated and distributed equitably between you and your spouse. If the assets in question have increased in value since you or your spouse acquired them, you may have to pay capital gains taxes on the proceeds.

If, on the other hand, the assets in question have considerably depreciated in value, you will be selling them at a loss. In such a scenario, you and your spouse might be able to deduct the losses from your taxable income. You can discuss it with your spouse, consult your lawyer, and talk to a CPA if needed and decide who gets to deduct the losses from their income.

Retirement Accounts

In Virginia, retirement accounts are generally considered marital property – even if the accounts in question were opened before the marriage. However, the court will take the date on which the account was created and the date of your marriage into consideration while dividing the retirement funds.

Let us assume that you opened a retirement account five years before your marriage, made regular contributions throughout the course of your marriage, which lasted 20 years, and have now filed for a divorce.

In such a scenario, the court might decide to exempt the contributions made to the account prior to the marriage while dividing the funds. In that case, it would only divide the contributions that were made during the 20 years you were married to your spouse.

One of the problems associated with the division of retirement accounts is that you might have to pay early withdrawal penalties. In order to avoid these penalties, some types of retirement accounts require that you obtain a qualified domestic relations order (QDRO).

Child Tax Credits

The IRS states that only one spouse can claim child tax credits in a given year. So, if your spouse gets custody of your children, you will probably not be able to claim child tax credits anymore.

Spousal Support

Until 2018, spousal support payments were tax-deductible. This is no longer the case, which means you cannot deduct the payments from your taxable income – if you are the payer. On the other hand, if you are the recipient, the payments you receive are exempt from taxes, which can be an advantage.

Planning to File for Divorce? Choose the Right Divorce Lawyer to Represent You

At Olmstead and Olmstead, we know that high asset divorces can be extremely complicated. We will be with you at every step of the process –valuation and division of marital assets, allocation of debts, spousal support, child custody, and child support. We will work hard to achieve a positive outcome in your divorce case and to protect your long-term interests. Call us today at 703-361-1555 for a free consultation with one of our Virginia divorce attorneys

How Does Mediation Work During a Divorce?

Divorce mediation refers to an alternative dispute resolution process that is available to couples to settle their differences on specific matters in a divorce. In some cases, the divorcing spouses may decide to try mediation. A judge may also order mediation for the couple in a divorce. It is vital to understand how mediation works before considering or initiating this process.

Role of the Mediator

A divorce mediator is a neutral third party. They will help and facilitate the spouses in reaching a mutually agreeable decision on matters related to residency, child custody, parenting time, division of assets, or other aspects related to divorce or family law issues.

Typically, mediators are attorneys. But they do not act as a legal representative for either party. Also, they do not provide any legal advice to the divorcing spouses during mediation. The mediator helps both parties in identifying the problems, reducing misunderstandings, focusing on priorities, determining areas of compromise, and arriving at mutually agreeable decisions.

The mediation occurs in a relatively informal environment, where the mediator assists the couple in addressing their differences, identifying priorities, and reaching a consensus where possible. Any agreement that the parties reach is based on the parties’ decisions and not those of the mediator.

A mediator does not decide for the parties or force agreements on the divorcing spouses. Rather, they understand the viewpoints of both spouses to try to determine areas of agreement. In mediation proceedings, all points of agreement are based on the spouses’ decisions and not the mediator’s.

How does the Mediation Process Work?

Mediation sessions take place in a safe and informal setting. The discussions that occur during mediation typically remain private. Any statements that the spouses make during mediation are protected by privilege. There are some necessary exclusions, such as matters such as reporting threats of violence. The factual information exchanged during mediation may be provided to a participant’s attorney at the end of the mediation if both spouses are agreeable to the disclosure.

At the outset of the mediation session, the mediator explains the process to both parties. Initial discussions are focused on determining areas in which the spouses have differences. Upon establishing the agenda, the mediator uses their experience and professional skill to encourage meaningful discussions between the participants. The mediator navigates through the issues and helps negotiable mutually acceptable resolutions, if possible.

In the mediation session, the mediator ensures that the participants fully consider the children’s best interest and the consequence of any decision both parties reach pertaining to the children. The mediator may meet with the children and other people if both spouses agree.

The mediator will end the process if they conclude either that continuing the mediation will harm or prejudice a party or impact the children or that the lack of willingness to participate makes a reasonable outcome unlikely.

What Happens if the Participants Agree on Issues?

In divorce mediation, an agreement is not binding on the participants or admissible in court unless it is documented, signed by both spouses and their lawyers, and approved by the court. When the mediation process ends, the mediator provides a written summary of the agreements reached by the participants. Moreover, the mediators will recommend that the participants seek legal help for assistance in the documentation of their mediation agreement.

When is Divorce Mediation Appropriate for Spouses?

While divorce mediation can be an effective process, it is not necessarily the right approach for all divorcing couples. If the spouses are amicable and have some basic agreements but also certain differences to resolve, the mediation process may work well.

Divorce mediation can also be effective in situations of high conflict. Mediators have the experience, skills, and tools to resolve the conflict between both parties, even in acrimonious circumstances. The mediator represents a neutral third-party and works to address disputes without taking sides by facilitating conversations between the participants. They offer equal support to both participants and encourage the spouses to focus on the best path forward for them and their families.

The process of mediation is versatile and adaptable. Spouses can use this format to resolve outstanding differences without the involvement of the judicial system. It can also save costs and emotional stress related to extended court battles. If you believe that mediation may be right for your divorce case, you should speak to your attorney or a professional mediator to learn more.

Consult an Experienced Virginia Divorce Attorney Today

Divorce is perhaps one of the most difficult times in a person’s life. At Olmstead & Olmstead, our compassionate attorneys are committed to fighting for your best interests to make life easier for you and your kids. Our Virginia family law attorneys have in-depth knowledge of divorce, paternity, child custody, modification, and other family legal matters.

To schedule a confidential and free consultation with one of our attorneys, call today at (703) 361-1555.

 

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.

Co-Parenting

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. 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.

Domestic Violence Surges with Coronavirus

Around the world countries are reporting a rise in domestic violence. Authorities have said this is hardly surprising. Reports of domestic violence always increase when families spend more time together. For this reason intimate partner violence hotlines often see an increase in call volume during the holidays. The same is true of most cities around the world as we all take precautions to slow the spread of Covid-19.

However, many major cities are actually seeing a decline. Places like Boston, New York City, and others have seen a significant decline in reports from pre-pandemic numbers. Experts say this drop is bad news.

Crisis Drives Domestic Violence

We know that abuse of any kind is all about power and control. These are unprecedented circumstances. There is much we still do not know about this virus. Researchers aren’t even certain yet if this will be a short or long term issue. Concern over the virus has resulted in very sudden and drastic changes for families all across the nation. People are out of work or working from home. Children who were once in school are now home full time with the added stress of distance learning. Researchers and government agencies are unsure of when to lift the stay at home restrictions.

So much uncertainty has many people feeling like they have very little control over their lives right now. Abusers struggle to handle these kinds of changes. The more out of control they feel, the more an abusers will try to regain that control by taking it out on their victims. Authorities worry that an extended shelter in place order will have disastrous consequences for survivors.

Domestic Violence and Coronavirus: A Means of Control

Unsurprisingly, abusers are taking advantage of the virus to further control their victims. The National Domestic Violence Hotline warns that abusers may use fear of the virus to further isolate and terrorize their victims. Abusive partners may threaten to lock a survivor out of their home to prevent them from leaving. They may share misinformation about the virus to scare survivors into remaining at home, even if they need medical care. They may also use it to prevent them from seeking help from family or friends. “A chatter mentioned that the abuser was using the virus as a scare tactic to keep the survivor away from their kids”, says the Hotline’s website.

It is also not just those trapped at home who are negatively affected by domestic violence and coronavirus. Even essential workers are seeing a change in their abuser’s tactics as a result of the pandemic. One chatter, a healthcare professional, called the Hotline and reported that “they were physically abused … because their abuser was sure they were trying to infect them with COVID-19.”

Virus Prevents Survivors From Seeking Help

The virus itself is also acting as a barrier to survivors seeking help. Southall says that many are choosing to remain at home with their abusers instead of risking exposure to the virus. She cites one example of a woman who called the Violence Intervention Program in New York. She wanted to leave her abusive husband but ‘decided the risk of exposing herself and her infant to the virus at a shelter was too high.’ Margarita Guzmán, the executive director at the Violence Intervention Program stated, “It’s really, for her, a choice between whether she stays with the devil she knows, or whether she risks what could be increased safety from the abuse but could also mean increased risk of the virus, and both with potentially lethal factors at the ends of it.”

Others remain over fears of endangering the lives of the loved ones they might call on for help. The CDC states that those most at risk of becoming seriously ill are the elderly and people with serious underlying health conditions. Many choose to stay out of fear that it would expose their elderly parents or a medically fragile friend to a potentially deadly virus. And with limited shelter space and resources even during the best of times, survivors fear they will have nowhere to go even if they do try to leave. 

Why is Reporting Down in Some Places?

Simply put, survivors have lost a major avenue of support. The stay at home order means that survivors are stuck at home where they may have very little privacy from their abuser. Trying to get enough time alone to make a phone call or to talk to a friend or neighbor is a dangerous game. Being confined in such close contact means her abuser is more easily able to keep tabs on her every move. A locked door or a hushed conversation can easily turn into physical violence.

Some programs are now offering text or online counselling to reach those who are housebound. Unfortunately, these platforms pose their own risks. Using text or online chats creates a digital paper trail that abusers can gain access to. And others may have no access to the outside world at all, digital or otherwise. Southall said ‘some victims are … effectively cut off from the outside world. Kavita Mehra, the executive director of Sakhi for South Asian Women, said one client’s husband had disconnected her cellphone to cut expenses after losing his job.’ With the price of failure being more violence, many survivors are choosing to remain silent and lie low until the stay at home orders relax.

Seek Legal Advice

Authorities believe reports of domestic violence will rise as states come out of lock down. States should prepare for an influx of people seeking services and orders of protection. If you or someone you know is the victim of domestic violence you may be in need of legal services. It is important to seek an attorney who has experience representing domestic violence cases. Look for law firms specializing in personal injury, criminal, and family law. These attorneys, like those at Olmstead & Olmstead, P.C., will be happy to help you protect yourself and your rights.

If you or someone you know is experiencing domestic violence, contact the National Domestic Violence Hotline via text or call at 1-800-799-7233. Here also are some state and national helplines and resources.

Call Olmstead & Olmstead at (703) 361-1555 for more information about domestic violence and Coronavirus.

 

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.