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.

How to avoid foreclosure

A lot of clients ask me what to do to stop a foreclosure on their home. There are several options that may be available: deed in lieu of foreclosure, modification of the loan, or short sale. Here is the difference.

Usually, a deed in lieu of foreclosure can only be done when there is only one mortgage on your home. If you have a second mortgage, equity line, or judgment or tax lien, it is usually not possible to do a deed in lieu. How this works is the mortgage company takes back the house instead of foreclosing on the house. They wipe out any deficiency between the value of the house and the amount owed on the loan. The bank keeps the house, and the homeowner can walk away with no debt owed to them.

A short sale means the homeowner puts the house on the market for sale and sells it. It is more difficult to do a short sale when you have more than one loan because all the lien holders have to agree to do the short sale and how to divide up the money received. You need to receive permission from the bank to do a short sale. Most of them require a “hardship letter” to qualify which means you need to explain why you hare having a hard time and the bank gets to decide if your reason qualifies. The most commonly accepted reasons are medical expenses, job lay offs, and divorce but the bank considers many problems as hardships. They appraise the house to get an idea of how much to sell it for. The house is sold for less than is owed on the mortgage (you sell it “short” of your loan amount). The bank forgives the difference.

Another option is refinancing. Many homeowners cannot refinance because their house is upside down or underwater (you owe more on it than it is worth). Sometimes the bank will cooperate any way but, again, if you have more than one mortgage this is probably not an option for you unless you can refinance the amount you owe to both. There are some federal programs around to assist homeowners but they have very particular qualifications and you have to make every payment on time if they decide to give you a chance. Most consider these programs to be failures, but some people have successfully refinanced with them. Some of those programs are:

Homeowner Affordability and Stability Plan (HASP) also known as the Making Home Affordable Plan (MHAP)

Home Affordable Modification Program (HAMP)

Home Affordable Refinance Program (HARP)

Hope for Homeowners (H4H)

A new program to help with second mortgages (second lien, home equity loans) has just started too.

Home Equity Loan Modification (HELM)

Here is a good website for more information on the federal programs available

http://trackthestimulus.com/Home_Equity_Loan_Modification.aspx

bankruptcy, student loans, and judges

When the bankruptcy law was overhauled in 2005, there were major changes regarding discharge of student loans. In the last, certain student loans could be discharged including private, non-government guaranteed loans and ones that were very old. Now, even those cannot be discharged. The only exception is for “hardship” which has been decided is almost exclusively for permanent disability of the debtor or, maybe, the debtor’s child.

On another note, Judge Krum, the bankruptcy judge for the Western District of Virginia for over 20 years, announced that he is retiring. A new judge has not been determined yet.

In Frederick County, Virginia, we are still waiting to find out which judge the General Assembly will choose to replace Judge Prosser who retired in February of this year. There are several names up for consideration. Meanwhile, the circuit judges of Winchester and Shenandoah Counties along with retired judges from other circuits are doing their best to keep Frederick County’s docket current.

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