Being Deposed: Tips for Testifying Under Oath

Nervous about an upcoming deposition?

Here are a few pointers to get you on track and prepared.

While being deposed most people fell the urge to argue their case- don't.  The more you talk, the more ammunition you give to the opposing counsel to use.

If the question being asked can be responded to with a simple "yes" or "no" answer it in a complete sentence describing what it is that you are saying yes or no to so that your short responses cannot be used agaisnt you.

Be honest.  As a witness if you discredit yourself even once you could lose all of your credibility.  If you don't remember something exactly let them know that you don't recall.  Don't fabricate an answer just to provide a response.

If you don't understand what is being asked of you- say something!  Don't respond with an answer to a question that was not asked, ask them to reword their question or to elaborate on specifics of what is being asked.

If you need to you the bathroom, take a break, or get a glass of water- say something! Just keep in mind that you have to finish the last question that was asked of you before you are allowed to take a break.

Don't blurt out the first thing that pops into your head.  Think for a few moments.  This time allows your attorney to think of grounds for objection and allows you to lay your response out in your head so that when you do speak you won't trip over your words or have to correct yourself.

If anyone looks confused about your answer to not take that to mean that you have to elaborate.  Only clarify your response when you're asked to.

Don't be 100% definitive.  If you're asked to produce each or every instance of an event make sure you end your statement with a qualifier like "As of right now that's the best I can recall the events."

Don't explain your train of thought or how you arrived to a response.  Again, it is not in your best interest to disclose more information than they ask for.

Since you are in fact being honest never classify your responses with "honestly, I..." or "truthfully, I..." It makes it seem as though you were not honest in previous answers.

Be honest.  As a witness if you discredit yourself even once you could lose all of your credibility.  If you don't remember something exactly let them know that you don't recall.  Don't fabricate an answer just to provide a response.

Everyone who likes the Law Firm of Marilyn Ann Solomon, past and future, will be entered into a drawing to win a $100 VISA card. The drawing will be on September 10, 2012 at noon at my office located at 130 E. Cork Street, Winchester, Virginia. You do not need to be present to win. The winner will be contacted through their Facebook user name. So please "like" the firm and get your chance to WIN $100!!!

Here's the Facebook link:

http://www.facebook.com/#!/marilynasolomon

Law Firm of Marilyn Ann Solomon

We won an interesting case this week involving two parents had a written agreement in 2007 that the father would deed to the mother the former marital home in exchange for $300.00 per month credit towards his child support obligation for 7 years for a total of $25,200. He deeded the house to her.
Four years later, the mother sued the father for contempt and child support arrearages for the $300.00... per month. She asked the court to put him in jail for not paying the child support. The Warren County Juvenile and Domestic Relations District Court held the father in contempt and found he had a child support arrearage for the full amount since 2004. The Warren County Circuit Court found dad was entitled to credit for the entire $25,200 amount pursuant to the parties' Agreement and that the father was not in contempt. The issue was whether the father was entitled to pay his child support with equity in a house instead of cash.
The court said the mother had to honor the agreement as she had the house which was also a home for the parties' child.

Another interesting case we won this week was a medical malpractice case. In that case, the patient went to the hospital having terrible back pain. She was given medicine in tbe ambulance. The doctor told the nurses to give her medicine through a shot in the muscle, but a new nurse made a mistake and gave it to her in the vein. This caused the patient to go into respitatory failure from a drug overdose and almost die. She had to be admitted to the hospital. We sued and after many discovery motions, the hospital finally settled the case.

We also won a trial in bankruptcy court. In that case, the client had stock in a club that owned hunting land. He claimed the stock was a "family heirloom" and the creditors challenged whether stock could be an heirloom. The client testified that he and his father hunted on that land when he was a child and it was filled with sentimental memories. He planned to pass the stock and hunting rights to his own child. The bankruptcy judge ruled that the stock was a family heirloom and he was entitled to exempt it from his bankruptcy estate.

Where to look for hidden assets before a divorce

Many times, people plan for a divorce for a long time. Often one spouse, often the wife, knows very little about the family's finances. Do they have investments? She doesn't know. Do they own stock? She doesn't know. Does her husband have a pension? She doesn't know. Often, valuable assets are not distributed to the wife because she doesn't know they exist and more often then not, the husband or the one hiding the assets, lies about it in the divorce so the assets are not discovered.

Here are some practical ways to see if financial information or assets are being hidden from you or to make sure you know what you have. First, NEVER sign a tax return without reviewing it. How much income is your spouse making? Is there ANY money indicated as income in the "interest and dividend" section? If so, there are investments of some kind. Are there any schedules attached to the tax return that you are not familiar with like Schedule C for businesses or K-1s for partnerships? Make a copy of each years tax return and keep it in a safe place. I suggest you let a family member or friend hold this type of important fnancial information.

Second, review your bank statements. Make sure you understand each transactions. Are regular monthly payments going to an entity you are unfamiliar with? Places like T Rowe Price, Fidelity, E Trade, Vanguard and others may indicate stock or mutual fund purchases. Look at your spouses paychecks. Is he or she investing in anything?

You may think your spouse does not have a pension because you have never seen a statement for it. Most companies do NOT send annual pension statements. They may never send any at all. Yet a pension is often the single most valuable asset in a marriage. If your spouse is entitled to just $500 per month, that amounts to $6,000 per year over an average 20 years or $120,000. One-half of that money may be yours. The marital share is one-half of the amount accumulated over the marriage.

NEVER sign any kind of written agreement without consulting an attorney first. You may be waiving your right to a pension or investment that you don't even know exists. You can google where your spouse works and see if they offera pension. Also, sometimes there is a statement for a pension like with the Virginia Retirement System and it shows a "cash value." Bear in mind that the "cash value" often has little relationship to the actual value. In the example above showing $120,000, the cash value may be $15,000. There is no comparison between the cash value and the pay out amounts, so if it exists you need to know and understand what the pension benefits are before deciding whether you are waiving them or getting your share.

If your spouse is secretive about his or her income or finances, there is usually a reason. If your spouse is self-employed and shows little taxable income but spends a lot paying bills etc. then he or she is probably hiding money. Try to pay attention to the financial aspects of the marriage so you have a good idea of what you own should a divorce or even a death occur. Again, never sign anything without seeing an attorney and finding out what your rights are. I can't emphasize how many hundreds of clients I have counseled that have no idea how much property their spouse has even though they have been married a long time.

What Constitutes Separate Property in Virginia?

Separately owned property does not automatically become marital upon marriage, even when it is placed into joint names. If one party invested separate funds into a marital asset, if they can trace out or prove that investment, they may be entitled to a return of the asset or the amount invested plus appreciation. This is a substantial issue in many cases.

The goal of the tracing process is to link every asset to its primary source, which is either separate property or marital property. Harris v. Harris, 2004 Va. App. LEXIS 138 (2004). See also Mann v Mann, 22 VA. App 459; 470S.E. 2d 605, 1996, holding that the interest passively earned on the husband’s premarital assets are separate.

The Code of Virginia, §20-107.3(A)(1)(iv) defines “separate property” as “that part of any property classified as separate pursuant to subdivision A.3. Code of Virginia, §20-107.3(A)(3)(e) provides that “when marital property and separate property are commingled into newly acquired property resulting in the loss of identity of the contributing properties, the commingled property shall be deemed transmuted to marital property. However, to the extent the contributed property is retraceable by a preponderance of the evidence and was not a gift, the contributed property shall retain its original classification.” (emphasis added). Code of Virginia, §20-107.3(A)(3)(g) provides that section (e) of this section shall apply to jointly owned property. No presumption of gift shall arise under this section where (ii) newly acquired property is conveyed into joint ownership.

The increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increases and then only to the extent of the increases in value attributable to such contributions. The personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributable thereto is to be considered marital property. See Code of Virginia, §20-107.3(A)(3)(a). All of the increases of the real estate in this case are attributable to market fluctuations.

Tracing involves a two-prong, burden shifting test. First, a party has to prove he invested separate property into the real estate, which he did. It is undisputed that all of the money used to purchase the real estate was his traceable separate property. Then the burden shifts to the Complainant to prove, by clear and convincing evidence, that the transmutation was a gift. There is no presumption of a gift that arises from the fact that one party put the real estate in the parties’ joint names. If the party claiming a separate interest proves retraceability and the other party fails to prove transmutation of the property by gift, "the Code states that the contributed separate property 'shall retain its original classification.
            The second issue is the passive appreciation in the value of the jointly titled real estate. Pursuant both to Virginia Code Va. 20-107.3(A), and using the Brandenburg formula, which has never been held erroneous by the Virginia appellate courts, (See Turonis, Supra) All of the passive appreciation on a party’s separate investment in real estate is also separate property. By contrast, although the customary care, maintenance, and upkeep of a residential home may preserve the value of the property, it generally does not add value to the home or alter its character. Martin, Supra.  The Court held that the Wife's evidence that at some time during the twelve years of marriage she personally painted, wallpapered, and carpeted parts of the house does not prove a "significant" personal effort.” These activities constitute part of the customary maintenance and upkeep that homeowners typically perform in order to preserve the home's value; they do not by their nature impart value to the home. Courts have held that the trial judge has a duty "to determine the extent to which [a spouse's] separate property interest in the home increased in value during the . . . marriage."
In the case of Hargrave v. Wienckowski, 2000 Va. Cir. LEXIS 208, the Court states that “traceable separate property that is commingled with marital property, whether to acquire new property or otherwise, is subject to being restored to the contributing party.” The Court analyzes the issue and finds that “parties are under no requirement to contribute their separate property, whether acquired before or during the marriage, to the marriage. If a party does so, he or she does so voluntarily and should be reimbursed for it unless the party intended to make a gift of such property to his or her spouse.” This holding is consistent with the purpose of the Virginia legislature in enacting the equitable distribution law which was to give courts power to compensate a spouse for his or her contribution to the acquisition of property obtained during the marriage.

If tracing separate property is an issue in a case, records proving the separate ownership are very important. Records include bank accounts, HUDs, deeds, mortgage and payments. Property acquired during the marriage or jointly titled is presumed to be marital without proof of a separate investment or ownership. Of course, the easiest way to resolve this issue is a prenuptial agreement.

When does adultery bar spousal support in Virginia?

In Virginia, a spouse is often entitled to spousal support when the other spouse makes significantly more gross income. A rule of thumb is that if one spouse makes 70% or more of the amount earned by the other spouse, there is generally no spousal support awarded. If they make less, than the spouse earning less income can be entitled to spousal support.

Virginia recognizes three types of spousal support: pendent elite, temporary, and permanent. Pendente lite spousal support is spousal support awarded while a trial is pending or after separation and before divorce. Temporary support is also known as defined duration support and can be awarded for up to 50% of the time the parties were married and together. Permanent support is just what it sounds like: permanent or until one of the parties dies or the one receiving spousal support remarries or cohabitates with another person for over a year. Pendent elite is calculated based on a formula (usually the Fairfax Guidelines) while temporary and permanent support is not. Adultery can be a bar to most types of spousal support although not usually pendente lite.

Virginia Code § 20-107.1(B) provides that "no permanent maintenance and support shall be awarded from a spouse if there exists in such spouse's favor a ground of divorce under the provisions of subdivision (1) of § 20-91," which includes adultery. The bar, however, is subject to one exception: that the court may make such an award notwithstanding the existence of such ground if the court determines from clear and convincing evidence, that a denial of support and maintenance would constitute a manifest injustice, based upon the respective degrees of fault during the marriage and the relative economic circumstances of the parties.

When can a property settlement or marital agreement be set aside as unconscionable?

When can a property settlement or marital agreement be set aside as unconscionable?

Virginia favors written agreements (contracts) especially among married parties. The person claiming the agreement is unconscionable has the burden of proof to prove it. An agreement is unconscionable if it is lopsided and significantly favors one party over the other. However, it is not enough that the agreement be disparate. It has to be so disparate that it “shocks the court.” There must also be some type of wrong doing by the other party like fraud, misrepresentation, or duress of some type. Otherwise, the court will not save one party from their bad bargain.

When is a pre or post marital agreement not enforceable in Virginia?

Virginia Code Section 20-151 provides that a premarital agreement is not enforceable if (1) it was not executed voluntarily or (2) it was unconscionable when executed and the person against whom enforcement is sought proves they were not provided a fair and reasonable disclosure of property or financial obligations of the other party or that they did not voluntarily and expressly WAIVE, in writing, their right to those disclosures. It is thus important that the Agreement contain exhibits showing assets and liabilities of each party or that a specific written waiver of that disclosure be provided. A refusal to provide the financial information can raise suspicions so if the parties are actually all in agreement regarding the terms of an agreement, it is best to include a list of assets and liabilities along with statements of net worth so there is no question of disclosure.

Adultery as grounds for divorce in Virginia

Virginia still recognizes fault grounds for divorce, and adultery is the only one that does not require any waiting period. If you can prove your spouse committed adultery by “clear and convincing evidence,” you can get an immediate divorce. Virginia Code Annotated Sections 20-91(A)(1) is the law providing adultery as a ground for divorce and Section 20-94 provides that it must be within five years of filing suit without any cohabitation after finding out about the adultery.

While adultery eliminates the 6 or 12 month waiting period for a divorce based on separation, it may not make a difference regarding equitable distribution of property unless there is an “economic impact.” Examples of economic impact include things like your spouse spending marital money or income on his or her lover. While the law requires an economic impact, many judges take adultery into account as a negative contribution to the marriage. Also, it is specifically relevant to the consideration of spousal support. If the spouse who wants support commits adultery, they are barred from support unless the other spouse has also cheated or unless it creates a “manifest injustice.” A manifest injustice means it is unfair to deny spousal support. This could be because the cheating spouse has given up a career to stay at home for the sake of the family or because the cheating spouse was physically abused by the other spouse. The determination of manifest injustice is usually fact specific and decided on a case by case basis.

If one spouse committed adultery and both parties want a divorce and just don’t want to wait the 6 or 12 months required, an uncontested divorce can be obtained on the grounds of adultery if the paramour is willing to sign an affidavit admitting to the sexual relationship.

Equitable distribution of marital property in Virginia

Division of marital assets in Virginia is called equitable distribution. The trial court is required to consider ten factors before deciding how to divide assets and debts, but it is typically close to or at a 50-50 division unless there are extenuating circumstances. Fair is not always equal in Virginia. Each case must be evaluated on its own facts. Did you put separate money into a marital asset? Did you inherit property or money? Did you help pay your spouse’s separate debts? Did you personally improve property? Did you gift or deed your spouse real estate or did they do so to you? Did your spouse spend marital money on a lover? All of these issues can have a significant impact on the equitable division of assets in a divorce. Some assets are marital, others are separate while still others are hybrid: part marital and part separate.

If one party has invested separate funds in a marital asset and can trace that investment, the property may be a “hybrid” property, part marital and part separate. The investing party is entitled to reclaim their separate investment if they can prove it, plus appreciation on it, if any, unless the other party can prove, by clear and convincing evidence, that it was a gift to them.

The court is required to decide which property is marital, separate, or hybrid. Separate property belongs to the person who owns it, and the other spouse receives no interest in that property. Separate property includes property owned before the marriage, property inherited by or given to only one spouse during the marriage, and assets acquired with money earned after the parties’ separation. Assets acquired during the marriage are marital even if they are only in one spouse’s name like a pension or retirement account. If one spouse invests personal effort or marital funds into the separate property of the other, the property may also become hybrid depending on the circumstances.

 If part of the pension or retirement account was earned before the marriage, it becomes hybrid property, part separate and part marital. Debts acquired during the marriage are also marital even if they are only in one spouse’s name.

What kinds of custody are available in Virginia?

What kinds of custody are available in Virginia?

Custody is divided into two types: legal custody and physical custody. Legal custody means the right to participate in major decisions affecting the child like educational, medical, and religious. Physical custody is the right to the child itself or what most people think of when they think of custody.

Primary physical custody is also called primary residence and primary care and is usually the parent the child resides mostly with. Virginia prefers that parents share joint legal custody with primary physical custody being in one parent or the other. However, if there are problems of abuse, drugs, or alcohol, joint legal custody will probably not work. Even if parents share joint legal and physical custody, it doesn’t mean they have equal 50-50 time with the child. Parents can share custody and design a schedule that works best for the child with or without it being 50-50.

A typical schedule provides time with the non-custodial parent every other weekend, usually Friday through Sunday, one night or evening during the week, shared or alternating holidays and the child’s birthday, and one or two weeks during the summer.

Shared custody can be week on, week off, alternating weekends with each parent having two days during the week, or 3 days on 4 days off then switch.

Child support is often paid even when there is 50-50 time with the child depending on the parents’ relative gross incomes. Gross income includes all income from every source for determination of child support.

If you can’t afford health insurance for your child, you should investigate Virginia’s FAMIS program. You can find information about FAMIS at:

http://www.famis.org/

Child support calculations are by the Virginia Guidelines. You can calculate your own using information found at:

http://www.dss.virginia.gov/family/dcse_calc.cgi

Who gets to live in the marital home during the separation?

There is not a black and white answer to this question. It depends on a lot of factors. If there are minor children, usually the court will allow the parent with primary custody to live in the house with the children during the separation.

In the past, the party living in the house with the children, usually the mother, asked the court to have the other party, usually the father, pay the mortgage during the separation. The payment of the mortgage was in addition to child support and spousal support. Some courts would order the mortgage paid by the husband, especially if the mother had no job. Others would divide the mortgage in two or deduct the rental value of the house from the amount of the mortgage, charge the person living in the house with the rental value, and divide the remaining amount either equally or in proportion to the parties’ income.

These days, an order for payment of the mortgage often depends on whether or not there is any equity in the house. Most divorcing couples don’t have any equity in the house so the court is not charged with preserving the asset during the separation period so it can be divided later. Often the court won’t even divide the deficiency or upside part of the house in the divorce as that can possibly prevent one of the parties from discharging the debt in bankruptcy later.

If there are no children, it is more difficult to decide who lives in the house. The court will not kick out a spouse if you are still together unless there has been domestic violence in which case the one attacked can get a protective order forcing the other spouse to leave. Short of violence, each spouse has the right to live in the house and the court won’t make either one of them go unless there are fault grounds causing the divorce like adultery in which case the court will often order the cheating spouse to leave (but not always, especially if there are children involved). Who gets the house during the separation depends on your particular situation.

division of marital debt in Virginia

Virginia Code 20-107.3 which distinguishes separate and marital property and provides the rules that the court uses to divide up marital property between spouses was recently changed to include rules about debts. Before the change, there was no provision distinguishing “separate” and “marital” debt or instructing the court how to divide them. Some courts routinely divided debts 50-50 while others divided them more in proportion to the parties’ relative incomes. Now the Court must sort out the debts according to the reason they were incurred (marital purpose or separate one). Even student loans can be considered marital if they were incurred for a “marital purpose” like increasing one spouse’s earning ability. The law was changed in response to rulings by the Court of Appeals regarding division of marital debt.  

Welcome to my new blog about Virginia divorce and bankruptcy law

My name is Marilyn Solomon. I've practiced law in Virginia for over 20 years. My firm focuses on divorce and bankruptcy law, and I will be blogging about interesting aspects of both. If I have a chance, I will also answer questions from my blog followers so feel free to ask!

In July of this year, Virginia finally made a change to the property Virginia citizens are allowed to keep. You used to be able to keep $2,000 of equity or value in a vehicle. As of July 1, 2011, you can now keep up to $6,000 in a vehicle of your choice. You can also keep up to $3,000 in a gun. For more information about bankruptcy or divorce, please feel free to review my website at:
marilynsolomonlaw.com

I am now also offering super fast uncontested divorces in Virginia at very affordable prices. I can get people divorced in less than 3 weeks if both parties are willing to sign the papers. I can also handle a divorce anywhere in Virginia and over the internet or telephone so no appointment is necessary.

I look forward to hearing from you with questions and providing information as we go.

Sincerely,

Marilyn Solomon