Month: April 2020

Are Pensions Considered Separate Property in Divorce?

In 2018 alone, over 21,000 divorces took place in Virginia, according to the Virginia Department of Health, Division of Health Statistics. With the prevalence of divorce comes the challenge of dividing up retirement assets among divorcing spouses.

You have worked hard for your pension, but you are now facing a divorce. You may be considering whether your pension or your spouse’s pension is considered separate or marital property. How do Virginia courts divide up retirement accounts such as Thrift Savings Plans, defined benefit plans (pensions), 401(k)s and IRA accounts?

Virginia Courts May Treat Retirement Accounts As Marital Property

In Virginia, Courts can divide all marital property at the time of the divorce.  Marital property generally means all property acquired by either party from the date of marriage until the date of divorce.  It does not matter how that property is titled or who earned it, if it was earned during the marriage, it’s marital property.

This applies to all forms of property, from bank accounts, investment accounts, retirement assets, real property, personal property etc.  There are a few exceptions to this, mainly property that is inherited or received as gift from a third party during the marriage will be recipient’s separate property.  Parties can also change how property would be handled in the event of a divorce by signing a Premarital or Postnuptial Agreement.

Once a Virginia court determines that your pension is marital property, a judge has the authority to divide the pension accordingly.  If a court determines that your pension is separate property (i.e. you earned your entire pension prior to the marriage), it will not divide the pension between you and your spouse. Instead, you will keep the entirety of your pension.

Virginia Courts Consider Some Retirement Accounts to be Hybrid Property

In many cases, pensions have both a separate component that was earned prior to the marriage and a marital component that was earned during the marriage.  This scenario is not uncommon and in this situation, the pension is referred to as ‘hybrid’ property meaning it has both marital and separate property interests.

When dividing a hybrid pension, the Court will determine, based on the evidence you and your attorney provide, what portion of your pension was earned during your marriage.  That portion is commonly referred to as the ‘marital share.’  The Court will only divide the marital share and in doing so, assuming sufficient evidence was shown, will leave your separate interest alone.  This approach applies to pensions as well as contributions to individual retirement accounts.

For example, if a marriage lasted 20 years and one spouse had been contributing to her pension for 10 years prior to the marriage, the marital share would be 66% or 2/3rds as the first 10 years would be the spouse’s separate property and will not be divided.  However, a court may divide the 20 years’ worth of contributions (i.e. ‘marital share’) made during the marriage between the spouses.

While there is no set percentage as to how courts will divide marital share, Virginia law does not allow a non-employee spouse to receive more than 50 percent of the portion of the pension that was earned during the marriage.  Following the same example above, in that scenario the Court could not award the non-employee spouse more than 50% of the portion that was earned during the marriage (1/2 of 66%) or 33%.

It is important to note that spouses can mutually agree to any type of division of retirement assets in their divorce settlement.

How do Courts Calculate the Value of a Pension Plan?

Valuing pension can be very complicated.  To do it successfully, a party would need to hire a pension valuation expert or actuary to calculate the present value of the pension and then divide it.  The reason it is so complicated is because you have to value a future stream of income (i.e. monthly payments) and make it into a current value/onetime payment.  If you decide to go that route, the Court can incorporate the current value of the pension into the division of marital assets.

In most cases, parties divide their interests in the pension and apply an ‘if, as and when’ payment arrangement.  This means that there will be no payment or transfer at the time of the divorce if the employee spouse is still working and earning his or her pension, but instead at the time of retirement the non-employee spouse will receive their share at the same time as the employee spouse receives theirs.

Even in situations where actual retirement will be many years down the road, at the time of divorce, a Court order should be prepared and sent to the plan administrator so that when the employee spouse decides to retire, the plan administrator will be on notice of the non-employee spouse’s claim, and be ready to process it and send payment to the non-employee spouse.  This method of dividing interest in the pension and having payment commence upon the retirement of the employee spouse is more common than the pension valuation approach.  If an employee is already in pay status, the payments to the non-employee spouse would typically commence upon the divorce.

As with all issues in a divorce, if the spouses do not agree on how to value and divide a pension for purposes of the divorce, a court will decide.

Let an Attorney Help You with Your Case

The division of retirement plans can be one of the more difficult aspects of divorce. Let us advocate for your interests when dividing up your or your spouse’s retirement plans. Please contact our law firm today for a confidential consultation. We have offices in Fairfax, Arlington, and Manassas, and we are able to assist you immediately.

If My Child is Sick During COVID-19, Can I Deny Visitation or Custody Arrangements?

For those wondering whether you’re able to deny child custody or visitation arrangements during the COVID-19 (novel coronavirus) pandemic, this one’s for you.  Child custody and visitation exchanges are exempt from the Governor of Virginia’s stay-at-home order. While school is out, working together to create a predictable and concrete schedule for custody and visitation can reduce stress and bring both parents and children comfort.  However, practicing common sense during these exchanges is key while the COVID-19 (novel coronavirus) pandemic is ongoing.  Before the child returns, ask everyone in the house to do a symptom check.  Let the child go from house to car or vice versa, so that the parents remain six feet apart.  Have the child wash his or her hands upon returning to your home.

If your child presents symptoms of being sick during visitation, alert your co-parent immediately and follow the guidance of your child’s doctor.  If your doctor recommends quarantine, this should likely take place at the home where the child first started showing symptoms after a full and honest discussion between the parents.  Please be reasonable about this, if one parent is still working full time while the other parent is not, perhaps the parent who is not working would be better able to provide care for sick child.  Where would the child be most comfortable, cared for and entertained?  If agreed upon, this quarantine can minimize exposure and germ transfer unless there are other safety and health concerns at that residence.  Further, if you have an attorney, keep them updated and seek counsel so they can address these issues early to avoid any accusations of withholding the child that may arise or discuss alternative solutions.

This may be a harsh reality for one parent, but COVID-19 should not be spread to both households if possible.  If one parent gets sick, the other should strive to remain healthy and ready to assume care of the child.  Parents should work together on creative solutions for visitation in such situations. Whether it is daily online visitation, extra weekends or holidays, or make-up time during the summer, there are many creative solutions to keep both parents involved, safe, and informed.

The last few months have been uncharted territory in child custody and visitation.  No one can predict how courts will rule on any custodial issues that arise during this time once court hearings resume.  However, courts are less likely to issue a finding of contempt when a parent can demonstrate attempted cooperation and communication with the co-parent.  Remember that your child’s best interests are the most important considerations.  Providing children with a sense of security, support and unity from both parents will help to promote a sense of peace for your children.  This is of equal importance to all precautions taken due to Coronavirus.

COVID-19 Protective Order Relief During the Pandemic

Due to the Governor of Virginia’s stay-at-home order, many are forced to cohabit with a significant other who may be physically, verbally, or emotionally abusive towards them.  Times of personal and financial strain historically exacerbate instances of abuse, and victims of domestic violence are at increased risk now more than ever.  Given the pandemic, Courts have closed for general business purposes and resources have become more difficult to obtain.  However, emergency court proceedings, such as protective order hearings, are still permitted under both the COVID-19 (the novel coronavirus) travel restrictions and declaration of a judicial emergency in Virginia.

Filing for a Protective Order During COVID-19 (the Novel Coronavirus)

When deciding whether to seek a protective order during COVID-19 (the novel coronavirus), many factors must be considered.  Is the relief I am asking for directly related to my needs to stay safe?  If denied, what plan do I have to stay safe?  Can I ask for child support to assist my children?  What consequences will a protective order have on my or my partner’s job?

Many forms for relief are available when seeking a protective order, but they must be requested in the initial petition.  A court can only grant the relief that was requested in that specific document, which is available the Juvenile and Domestic Relations District Court Clerk’s Office.  Some types of relief that the Court can grant at the final hearing, include temporary child support, granting exclusive use of the home, forbidding further acts of abuse and contact, and requiring that communication be through text message or email.  A judge can even order the perpetrator not to turn off any utilities or telephone services at the home.

Based on our recent appearances, it seems that some Judges are becoming slightly wary of people who are attempting to utilize the protective order process to address matters that would otherwise be addressed in regular court processes and avoid the court closures due to COVID-19 (the novel coronavirus).  Courts may also be less likely to exclude someone from the home all together right now but instead require increased safeguards within the home to protect a petitioner or child in common.  However, a person needing protection from a spouse or partner should not be deterred, whether due to this, financial or familial fears and threats.

Experienced Domestic Violence Attorney in Virginia

Shoun Bach understands that the decision to seek assistance and a protective order is a delicate decision to make and could have dangerous consequences, particularly during these unprecedented times.  If you would like to discuss your options or representation for a pending case, we are here for you.  Please call us at 703-222-3333 or visit our website and send us a confidential message via our website.

How is COVID-19 (Coronavirus) Affecting Your Case

As you know, not only has the Governor of Virginia issued Stay-at-Home Orders, but the Supreme Court has also declared a Judicial Emergency during the COVID-19 (novel coronavirus) pandemic.  If you would like to read the most recent Notice from the Supreme Court of Virginia, it can be found here.

Given that the Court handles so many different matters, we wanted to explain what the declaration of Judicial Emergency means for our current and potential new clients.

Generally speaking, the Courts are not hearing any civil matters, except for emergency matters.  Divorce, child custody and visitation matters and support matters all fall under this umbrella of ‘civil matters’.  Therefore, we can’t have any in person hearings right now.  There has been a lot of discussions in the legal community regarding our local jurisdictions hearing limited matters via telephone or internet conferences (WebEx, Zoom, etc.) and most Courts will permit it.  Proceeding electronically makes sense for certain issues, such as discovery disputes or other narrow issues that focus on legal argument versus factual disputes.  We can use the Court’s willingness to hear these matters electronically to keep moving your case along if we need to.  In the future, we will likely be able to offer testimony and evidence remotely so even matters involving factual disputes or with multiple witnesses can be heard electronically as well, we are just not there… yet.

Filing Documents with the Court During COVID-19 (Coronavirus)

Clerk’s Offices remain open and are accepting filings, both of new cases and in existing cases.  What does this mean?  This means that we can file new cases for divorce, adoption, or petitions for support, custody or visitation like normal and the filing will be processed as usual.  We can also reopen prior cases, if there are ongoing enforcement or compliance issues or if there is a basis for modification.  This also means that we can file Motions or Petitions.  So, the initial steps remain the same.  Remember, in some cases, the sooner we file the better, such as cases with child support as the Court can award child support retroactively back to the date of filing.

Additionally, we can file Consent Orders and along those same lines, we can process uncontested divorces.  In our recent experience, the actual turn-around time is much faster now than it was previously.

How Does COVID-19 Affect My Pending Case?

The pending cases themselves are not stayed or suspended, meaning we can still continue to focus and work on your case as normal.  We can still file Motions, negotiate Consent Orders, issue and respond to discovery, including taking depositions remotely using WebEx, Zoom or other secure online platforms.  Mainly, the only thing we cannot do right now, is have an in person hearing or meeting with people.  Unless, of course, it is an emergency.

Given that most matters have been continued from the Court’s dockets, now is a great time to focus on negotiation and resolution of matters.  Attorneys are available to schedule time to meet with you either by phone or with a virtual meeting, we can set up a virtual four-way conference or even a mediation.  Many mediators have been trained in virtual/remote mediation and the mediation companies that we most often use, are ready, willing and able to jump in and help with negotiations.

While it may seem counter intuitive, now is actually a really good time to focus (or refocus) and get things moving with regard to your pending separation or divorce.  It’s also a really good time to move forward with matters where hearings are not required, such as many types of adoptions where the papers are reviewed by a Judge.  As was mentioned above, the Courts seem to be processing paperwork and fully endorsed Orders much quicker than the months leading up to this COVID-19 (novel coronavirus) pandemic.

We understand the most important focus right now is keeping yourself and your family safe and healthy.  But if you would like to talk about moving your case along or starting the separation process, please contact us to set up an appointment.

Coronavirus and Domestic Violence: Protecting You and Your Family

As COVID-19 has compelled government leaders to issue stay-at-home orders and lockdown policies, domestic violence incidents are increasing around the world.  Many people are forced into seclusion with an abusive significant other and deprived of significant resources and assistance that would be otherwise available.  Protecting yourself and your family has become much more dangerous and complex.

If you or a family member is in immediate danger, call 911.  The police can assist with obtaining an Emergency Protective Order (EPO).  An EPO lasts for forty-eight (48) hours, providing a victim of domestic violence the chance to seek a longer protective order.

A protective order can also be obtained through an affidavit or testimony before a judge or magistrate in the Juvenile and Domestic Relations District Court.  This initial protective order is called a Preliminary Protective Order (PPO) and lasts for two weeks until the final hearing. At the final hearing, the judge will decide whether to issue a Final Protective Order (FPO) that can last up to two years.

What to Expect at a Hearing

In Virginia, protective order proceedings are one of the few matters still actively being heard by the Courts under the Supreme Court’s Order declaring a judicial emergency and our attorneys are still appearing in court regularly on these matters.

At the final hearing, the person seeking the Protective Order must prove that (1) an act of family abuse occurred and (2) the protective order is necessary for his or her continued health and safety.  Many people seeking Protective Orders fail to appreciate the gravity of the final hearing and prepare accordingly.  The burden of proof and evidentiary rules are crucial legal hurdles that any person seeking a protective order must understand.

Knowing what to expect is the first step to ensuring all information is properly conveyed to the Judge.  Both parties, the person seeking the Protective Order and the person against whom the Order is sought, will be present in the same courtroom.  Each party will have the opportunity to testify and call witnesses, including the other party.  Judges will often interrupt the proceedings to ask questions, rule on objections, or review the evidence.  Any pictures, witnesses, recordings, or other proof or evidence should be brought and presented to the Judge.  Once each side has presented their evidence, the Judge will decide if a Final Protective Order should be entered or not.

Contact a Lawyer in Northern Virginia

If you are seeking advice or assistance with obtaining a Protective Order or if someone is seeking a Protective Order against you, we have experienced attorneys who know the ins and outs of Protective Orders and related matters.  Our attorneys are skilled at consultation and representation of both sides of Protective Orders and are ready to help.  If you have questions, please call 703-222-333 or visit our website and fill-in the online contact form at https://www.shoun.com

Can I see my child during the coronavirus Covid-19?

As we all know, on March 30, 2020 the Governor of Virginia issued a statewide Temporary Stay at Home Order due to Novel Coronavirus (COVID-19). The order directs all Virginians to stay home except in extremely limited circumstances.

One of those circumstances is for the purpose of traveling required by court order or to facilitate child custody, visitation, or child care.  We understand that stress and anxiety levels are increased due to the COVID19 pandemic, however, we urge our clients not to let that translate into interference and/or withholding of custody or visitation.  If you believe that you may have been exposed to COVID-19 or have concerns that the other parent has, please feel free to reach out to us, we can help you in creating an arrangement or temporary modification of your current schedule to address that scenario.

We are committed to being here with you and will work through the COVID-19 crisis and any others that come our way.  We will continue to guide and navigate things the best way we know how.  We have not and will not be shutting down.  If you have questions regarding how this Order or any other issue specifically impacts your case, please contact your individual attorney for more detailed information.  We are continuing to take on new clients.  If you would like to talk to one of us, please contact our office at (703) 222-333.

How your family can deal with COVID-19

These are stressful times for all of us. The American Psychiatric Association (APA) notes that infectious disease outbreaks, such as the novel coronavirus (COVID-19), create significant distress for the public as well as strain health care systems tasked with caring for affected individuals and containing the disease. We are all in the midst of it, and we can all feel it.

To help us deal with the stress, the APA recommends that we:

  1. Stay informed. Obtain current information about the outbreak from trusted sources, such as the Centers for Disease Control and Prevention atwww.cdc.gov and the World Health Organization at www.who.int.
  2. Educate. Follow and share basic information about hygiene to reduce spread of illness, such as handwashing and cough etiquette.
  3. Correct misinformation. For health care workers, help correct inaccurate information and misperceptions by sharing credible, established public health resources.
  4. Limit media exposure. Use media enough to make informed decisions, then turn it off.
  5. Anticipate and address stress reactions. Keep in mind that it’s normal to feel stress in reaction to an infectious disease outbreak and be aware of signs of stress in yourself or family members. Take steps to minimize and address stress, such as keeping normal routines, taking part in enjoyable activities, focusing on positive aspects of your life and things that you can control; seeking support from friends and family; and engaging in stress reduction techniques and physical activity.

Each of us has different concerns.  Luckily, there are great resources out there to help guide us in processing our emotions and supporting our loved ones in doing the same.

A couple one that we recommend are the APA’s Resources for Families which covers topics such as how to talk to your children about COVID19 as well as guidance for taking care of family wellbeing.  In addition, the American Academy of Pediatrics’ Healthy Children Website has a ton of articles with different areas of focus, from newborn care to social distance and positive parenting.  We realize in these times, it’s not just your own wellbeing that you are caring for, but also that of family members and friends.

If you feel that you could benefit from outside support, many therapists and doctors are seeing their patients (and new patients) electronically from the comfort of their own homes.  If you don’t have a therapist but think you could benefit from having one or finally have the time to check that off your list, check out your insurance company’s list of providers as well as the therapist locator at Psychology Today.

The anxiety and fear compounded with the stay-at-home orders can feel isolating.  You can combat that with using Facetime, Sykpe, Zoom or any of the other providers, to video chat with friends and family.  Some of us at ShounBach have tried to stay connected by having virtual game nights, movie nights, happy hours, play dates and lunch meetings, as well as live and on demand exercise classes with friends and family.  Additionally, we are also happy to use videoconferencing to meet with our clients to stay connected – just disregard the barking dog or the sound of board games gone awry in the background J.

We will get through this.  We are here to help.  We remain open and accepting new clients.

Fairfax Office
(Main Office)

4000 Legato Road, Suite 400
Fairfax, VA 22033

Get In Touch

Phone: 703-222-3333
Fax: 703-222-3340
Contact Us

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
Call Now Button