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Phillips, Morrison, Johnson & Ferrell Blog
Affordable flat rates for basic estate planning documents.
Thursday, May 17th, 2012
Phillips, Morrison, Johnson & Ferrell is pleased to announce that we are offering flat rates and packages for basic estate planning documents including simple wills, simple trusts, advance medical directives, and power of attorney documents.
CONTACT OUR DOWNTOWN LYNCHBURG OFFICE TO LEARN MORE
There seems to be a glut of ‘cheap and easy’ legal documents on the internet these days. Unfortunately, the sites offering such documents are usually unwilling or unable to offer actual legal advice regarding the documents they are peddling. A brief review of some of the offerings indicates the old adage remains true: “You get what you pay for.”
There is no substitute for the advice and direction of a licensed attorney when it comes to preparing and executing what may be some of the most important legal documents you ever sign. There is more to an effective, properly executed legal document than a collection of confusing, archaic sounding clauses and the stamp of approval from your local notary. In an effort to hopefully save some of our fellow citizens from the trap of poorly drafted, ineffective executed estate planning documents, we have decided to offer affordable, flat rate prices for basic estate planning documents such as simple wills, simple trusts, powers of attorney, or advance medical directives.
We hope that by providing this service our clients will be able to rest easy knowing that these important documents have been prepared and reviewed by a licensed attorney who will also oversee the documents’ execution to ensure that it is done in a legally effective fashion. Whatever you decide, when it comes to obtaining basic estate planning documents you simply cannot put it off for another day. Having a will, durable power of attorney, and advance medical directive means that you have done everything in your power to eliminate a huge source of stress and potential conflict from your loved one’s shoulders. When these documents are needed it is usually too late.
We suggest that you consider a package for yourself or for you and your spouse (an even deeper discount), including a simple will (possibly with a simple trust), power of attorney, and advance medical directive.
Please call our downtown Lynchburg office (434-384-0946) and learn how quick, simple, and affordable it can be to obtain basic estate planning documents that have been prepared and reviewed by a licensed attorney who will also supervise the execution of the documents to ensure that they are legally effective.
Affidavits in a No-Fault Divorce
Thursday, April 26th, 2012
New Virginia legislation becomes effective in July 2012 that will allow parties to submit evidence establishing the grounds for a no-fault divorce by affidavit on the following conditions: 1) there is a signed written agreement resolving all issues so that the only issue is grounds for divorce, and 2) the opposing party was properly served and did not file a responsive pleading or make an appearance in the case. This new rule should streamline the “uncontested” divorce process by providing time and cost savings through the elimination of the need for taking depositions or appearing in court to give testimony. The interests of the adverse party are protected by the requirement for a signed agreement resolving all issues other than grounds for divorce. To learn more about the divorce process or uncontested divorces visit http://www.pmjf.com/areas-of-practice/family-law#divorce.
Our firm offers exceptional divorce and family law legal services as well as affordable uncontested divorce packages. Please call for more information if you seek legal representation in a divorce or family law matter.
Brian R. Moore
Automatic termination of Power of Attorney in divorce
Wednesday, April 25th, 2012
New Virginia legislation effective July 1, 2012 amends VA Code § 26-81 to provide that an agent’s authority under a power of attorney terminates when (unless the power of attorney otherwise provides):
“an action is filed (i) for the divorce or annulment of the agent’s marriage to the principal or their legal separation, (ii) by either the agent or principal for separate maintenance from the other, or (iii) by either the agent or principal for custody or visitation of a child in common with the other”.
The reason for this legislation is pretty self-explanatory. Many would be surprised to know that spouses will occasionally abuse a power of attorney shortly after separation as a means to take control of assets. In the absence of this statutory provision an agent under a power of attorney still has fiduciary obligations that may be enforced. However, this provides unwary persons additional protection from unscrupulous soon-to-be ex-spouses.
Relaxation of some divorce “notice” requirements
Wednesday, April 25th, 2012
New Virginia legislation effective July 1, 2012 relieves plaintiffs of the requirement to provide notice of depositions and permits a court to enter an order or final decree of divorce without further notice to the defendant if the defendant fails to file an Answer or make an appearance after having received proper Notice of Service of the suit. Here is the new text added to VA Code 20-99:
“5. In cases where such suits have been commenced, the defendant has been served pursuant to the provisions of subdivision 1 of § 8.01-296, and the defendant has failed to file an answer to the suit or otherwise appear within the time allowed by law, no further notice to take depositions is required to be served on the defendant and the court may enter any order or final decree without further notice to the defendant.”
The most likely use for this new provision is to facilitate and streamline the uncontested divorce process although it may be a useful tool in other situations. It is important to note that the plaintiff is not relieved of any obligation he/she may have to provide other notices required by law.
New notice regarding death benefit beneficiary designations
Wednesday, April 25th, 2012
When it really matters it is too late….Effective July 1, 2012 all divorce decrees (or annulments) must contain a notice to the parties informing them that the decree may not be sufficient in and of itself to terminate any beneficiary designations in contracts providing death benefits such as life insurance. The revised statute (VA Code 20-111.1) requires the following notice in “conspicuous, bold print”:
“Beneficiary designations for any death benefit, as defined in subsection B of § 20-111.1 of the Code of Virginia, made payable to a former spouse may or may not be automatically revoked by operation of law upon the entry of a final decree of annulment or divorce. If a party intends to revoke any beneficiary designation made payable to a former spouse following the annulment or divorce, the party is responsible for following any and all instructions to change such beneficiary designation given by the provider of the death benefit. Otherwise, existing beneficiary designations may remain in full force and effect after the entry of a final decree of annulment or divorce.”
The most important part of the notice is the “may or may not” language, which will hopefully put parties on notice that they cannot count on the rest of the statute’s provisions to cancel any death benefit designations for them as there may be other state or federal laws that supersede these provisions. In other words, check with the plan/policy provider and/or administrator just to be sure because you will not be there to make corrections when it matters.
It is statutes like this one that make most people realize they should not try to handle their own divorce without an attorney. Dividing and dealing with insurance policies, pensions, 401(k) plans, and other assets or devices can be one of the most complicated parts of the divorce process.
Our firm offers exceptional divorce and family law legal services and our attorneys have the experience necessary to advise you on topics such as these. We also offer Qualified Domestic Relations Order (QDRO) drafting services to those who simply need assistance in carrying out the division of qualified plans pursuant to a divorce/property settlement agreement. Please call for more information if you seek representation in a divorce or other family law matter.
Virginia Equitable Distribution Statute Clarified
Wednesday, June 15th, 2011
The Virginia Legislature has amended the equitable distribution statute, Virginia Code 20-107.3, which deals with division of property in divorce cases. Many of the changes appear to be in response to the recent decision by the Virginia Supreme Court in Gilliam v. McGrady, 279 Va. 703, 691 S.E.2d 797 (2010). You may read more about the court’s decision in one of my previous blogs located here: http://www.pmjf.com/news/dividing-debts-in-divorce-just-became-a-little-trickier
The new version of 20-107.3 adds quite a bit of new text in an effort to clarify matters and respond to Gilliam.
20-107.3(A) was amended by adding the language I have underlined and italicized:
A. Upon decreeing the dissolution of a marriage, and also upon decreeing a divorce from the bond of matrimony, or upon the filing with the court as provided in subsection J of a certified copy of a final divorce decree obtained without the Commonwealth, the court, upon request of either party, (i) shall determine the legal title as between the parties, and the ownership and value of all property, real or personal, tangible or intangible, of the parties and shall consider which of such property is separate property, which is marital property, and which is part separate and part marital property in accordance with subdivision A 3 and (ii) shall determine the nature of all debts of the parties, or either of them, and shall consider which of such debts is separate debt and which is marital debt. The court shall determine the value of any such property as of the date of the evidentiary hearing on the evaluation issue. The court shall determine the amount of any such debt as of the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, and the extent to which such debt has increased or decreased from the date of separation until the date of the evidentiary hearing. Upon motion of either party made no less than 21 days before the evidentiary hearing the court may, for good cause shown, in order to attain the ends of justice, order that a different valuation date be used. The court, on the motion of either party, may retain jurisdiction in the final decree of divorce to adjudicate the remedy provided by this section when the court determines that such action is clearly necessary, and all decrees heretofore entered retaining such jurisdiction are validated.
Sections 107.3-4(A)(4) and (A)(5) were added. Here is the new text:
(A)(4)
4. Separate debt is (i) all debt incurred by either party before the marriage, (ii) all debt incurred by either party after the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, and (iii) that part of any debt classified as separate pursuant to subdivision A 5. However, to the extent that a party can show by a preponderance of the evidence that the debt was incurred for the benefit of the marriage or family, the court may designate the debt as marital.
(A)(5)
5. Marital debt is (i) all debt incurred in the joint names of the parties before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, whether incurred before or after the date of the marriage, and (ii) all debt incurred in either party’s name after the date of the marriage and before the date of the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent. However, to the extent that a party can show by a preponderance of the evidence that the debt, or a portion thereof, was incurred, or the proceeds secured by incurring the debt were used, in whole or in part, for a nonmarital purpose, the court may designate the entire debt as separate or a portion of the debt as marital and a portion of the debt as separate.
Virginia Code 20-107.3(C) was amended by adding the follwoing text that I have underlined and italicized:
C. Except as provided in subsection G, the court shall have no authority to order the division or transfer of separate property or marital property, or separate or marital debt, which is not jointly owned or owed. The court may, based upon the factors listed in subsection E, divide or transfer or order the division or transfer, or both, of jointly owned marital property, jointly owed marital debt, or any part thereof. The court shall also have the authority to apportion and order the payment of the debts of the parties, or either of them, that are incurred prior to the dissolution of the marriage, based upon the factors listed in subsection E.
Lets hope these changes help to clarify what be a very, highly-litigated, and complex process!
Brian Moore
Scope of Pendente Lite orders expanded in Virginia
Wednesday, June 15th, 2011
Virginia Code 20-103 provides for Pendente Lite orders. Pendente Lite orders are temporary orders entered by courts during the pendency of divorce, custody, or visitation etc. suits. They are most often used as a means to address pressing financial or custody related matters that need to be resolved before the court has an opportunity to hold a full hearing in the case. Such orders Under the new statute, courts may “order that a party pay secured or unsecured debts incurred jointly or by either party“. Here is a full list of the types of orders a court may issue “pendente lite” under the new legislation:
- (i) to compel a spouse to pay any sums necessary for the maintenance and support of the petitioning spouse, including (a) an order that the other spouse provide health care coverage for the petitioning spouse, unless it is shown that such coverage cannot be obtained, or (b) an order that a party pay secured or unsecured debts incurred jointly or by either party,
- (ii) to enable such spouse to carry on the suit,
- (iii) to prevent either spouse from imposing any restraint on the personal liberty of the other spouse,
- (iv) to provide for the custody and maintenance of the minor children of the parties, including an order that either party or both parties provide health care coverage or cash medical support, or both, for the children,
- (v) to provide support, calculated in accordance with § 20-108.2, for any child of the parties to whom a duty of support is owed and to continue to support any child over the age of 18 who meets the requirements set forth in subsection C of § 20-124.2,
- (vi) for the exclusive use and possession of the family residence during the pendency of the suit,
- (vii) to preserve the estate of either spouse, so that it be forthcoming to meet any decree which may be made in the suit, or
- (viii) to compel either spouse to give security to abide such decree.
It should be noted Virginia Code 20-103(E) provides that Pendente Lite orders ” have no presumptive effect and shall not be determinative when adjudicating the underlying cause“.
Brian Moore
Virginia Protective Orders Expanded
Wednesday, June 15th, 2011
Availability of protective orders expanded by new changes in Virginia law. Under prior Virginia law, protective orders were only available to cases involving “family abuse”, stalking, sexual battery, or criminal offenses involving serious bodily injury. Effective July 1, 2011, protective orders will now be available to persons in any case involving an “act of violence force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury”. This increase in the scope of availability of protective orders occurs primarily via amendments to Virginia Code Chapter 9.1 of Title 19.2. The most obvious change occurring in the title of Chapter 9.1, which was amended from “Protective Orders for Stalking” to simply “Protective Orders”. Of course, there are also modifications to the language therein. Important definitions under the new statute may be found in Virginia Code § 19.2-152.7:1. It will be interesting to see how courts interpret and apply this new statutory language. Brian Moore
Dividing debts in divorce just became a little trickier…
Wednesday, May 4th, 2011
In its recent decision in Gilliam v. McGrady, 279 Va. 703, 691 S.E.2d 797 (2010), the Virginia Supreme Court held that debts accumulated during the marriage are not necessarily presumed to be “marital debts” for the purpose of equitable distribution (“equitable distribution” refers to the process of dividing assets in divorce). This is in contrast to the fact that assets accumulated during the marriage are presumed to be “marital assets” under the equitable distribution statute. The Court reasoned that debts and assets are addressed separately in the statute and that, unlike the provisions pertaining to assets, there is no language creating the presumption that debts accumulated during the marriage are “marital debts” even if they are incurred in the name of only one spouse. A good example would be a credit card debt when only one spouse is the account holder.
This decision increases the burden on a spouse claiming that a debt in their name alone was incurred for a marital purpose (i.e. a credit card that was used to buy groceries for the family). Attorneys must pay additional attention to the factors set forth in Virginia Code § 20-107.3(E) and develop their arguments accordingly to meet this burden.
Time will tell just how stringently the trial court wish to apply this revised standard when apportioning debts during equitable distribution. It is possible that the legislature will amend the statute to authorize a presumption with regards to “marital debts” as already provided for with respect to “marital assets”. Until we get a better feel from the courts or clarification from our legislatures the best course of action, as always, is to be prepared for the worst while hoping for the best. Brian Moore
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