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- James H. Wilson, Jr.'s Website Profile
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- The Interplay Between Bankruptcy and Divorce Law in Virginia
- Will a federal court enforce an immigration support affidavit against a husband while a divorce is pending in Virginia?
30 April 2018
- Is a divorce award of the former marital residence to wife enforceable against husband’s chapter 7 bankruptcy trustee?
12 February 2018
- Is husband’s divorce agreement to make wife’s mortgage payments nondischargeable in a chapter 13 bankruptcy?
8 February 2018
- Is a husband’s agreement to pay his wife half the monthly payment amount for her parent’s loan to them during the marriage nondischargeable in husband’s chapter 7 bankruptcy after a divorce?
6 February 2018
- Does wife have a claim in husband’s chapter 7 bankruptcy case for an equitable share of the marital property before entry of the final decree of divorce?
5 February 2018
- Does a divorce attorney have standing to contest the dischargeability of attorney’s fees as a domestic support obligation in bankruptcy?
30 January 2018
- Is an overpayment of spousal support nondischargeable in a chapter 7 bankruptcy case?
29 January 2018
- Is a chapter 13 bankruptcy case filed one month after a divorce a bad faith filing in Virginia?
11 December 2017
- Must support obligations be paid in full in chapter 13 before the debtor’s attorney’s fees?
9 December 2017
- Adultery in Divorce Law in Virginia
- Does a mutual reservation of spousal support satisfy the manifest injustice exception to the bar of spousal support for adultery?
10 May 2018
- Did wife waive her 5th Amendment privilege against testifying about her adultery and was husband’s stock purchase agreement properly classified as hybrid property?
19 February 2018
- Will husband’s adultery result in a less than 50% share of marital property upon divorce?
7 December 2017
- Can a Virginia court order a devoted and financially responsible husband to pay spousal support to his adulterous wife based merely on a gross disparity in income?
3 October 2017
- Does wife’s alleged prior infidelity invalidate a separation agreement incorporated into a final decree of divorce?
12 September 2017
- Can a Virginia court award a legal separation based on adultery?
3 August 2017
- Will a court award spousal support of $12,000 a month to wife on top of a $2.5 million dollar equitable distribution award, when husband’s adultery was a significant, but not a primary cause of the end of the marriage?
14 July 2017
- Divorce in Virginia: a publication of the Virginia State Bar
2 December 2016
- Should adultery or some other fault ground for divorce in Virginia, determine the amount and duration of spousal support or alimony?
3 May 2016
How Is Child Custody Decided In Virginia?How Is Property Divided In a Virginia Divorce?
How Is Property Divided In a Virginia Divorce?How Is Spousal Support Calculated in Virginia?
How is spousal support calculated in Virginia?How Is Child Support Calculated in Virginia?
How is child support calculated in Virginia?Which Divorce Debts May Be Discharged In Bankruptcy?
Which divorce debts may be discharged in bankruptcy?How Are Temporary Spousal Support and Child Support Calculated in Virginia?
How are temporary spousal support and child support calculated in Virginia?Is a Separation Agreement Necessary for a No Fault Divorce in Virginia?
Is a separation agreement necessary for a no fault divorce in Virginia?Is a Husband or Wife Responsible for His or Her Spouse's Debts in Virginia?
Is a husband or wife responsible for his or her spouse's debts in Virginia?Does Legal Title Determine Interests in Marital Property in a Virginia Divorce?
Does legal title determine interests in marital property in Virginia?Must a Husband and Wife File Bankruptcy Together in Virginia?
Must a husband and wife file bankruptcy together in Virginia?Is There a Legal Separation in Virginia?
Is there a legal separation in Virginia?What Are the Grounds For Annulment in Virginia?
What are the grounds for annulment in Virginia?Can an Individual with High Income Obtain Bankruptcy Relief in Virginia?
Can an individual with high income obtain bankruptcy relief in Virginia?How May a Separated Spouse Obtain Support in Virginia?
How may a separated spouse obtain support in Virginia?What are the grounds for divorce in Virginia?
What are the grounds for divorce in Virginia?Will I Lose My Home in a Virginia Bankruptcy?
Will I lose my home in a Virginia bankruptcy?What are the different types of consumer bankruptcies in Virginia?
What are the different types of consumer bankruptcies in Virginia?The Benefits of Filing Bankruptcy in Virginia
The Benefits of Filing Bankruptcy in Virginia.
- Q. What are the notices required for spousal support and what do I need to include in the paper work for divorce?
- A: Virginia Code Section 20-107.1(H) sets forth the required notices for court-ordered spousal support only, while Virginia Code Section 20-60.3 sets forth the required notices for court-ordered spousal support where the parents have a mutual child support obligation. Local practices in Virginia vary, but generally the required support notices can appear either in a written separation or custody agreement incorporated into a court order, or only in the court order itself. The notices provide useful and necessary information for the collection of court-ordered support in Virginia. A court will not enter a support order without the statutory-required notices, even if the parties have agreed to zero child support paid.
- Q. my chapter 13 was dismissed and had to file another one to keep my home, does the second one plays by the same rules?
- A: The protection against creditors under the automatic stay in bankruptcy only lasts for the first 30 days in a second case filed within a year of dismissed prior bankruptcy. In most cases, the debtor should file a motion to extend the stay past the first thirty days by demonstrating that the second case was filed in good faith, usually by illustrating a beneficial change in financial circumstances since the dismissal of the first case. The hearing on the motion should be scheduled to be heard within the first 30 days after case filing. The substance and procedure of these motions is rather technical, and any debtor should immediately consult with counsel before filing such a motion.
- Q. What happens if one of the witnesses to a holographic will dies before the person who wrote the will?
- A: Virginia recognizes the validity of holographic will. A true holographic will, written entirely in the handwriting of the testator, does not require two witnesses at time of execution; however, two disinterested witnesses are necessary to prove the will, but these witnesses may or may not have been witnesses to the execution. For example, a disinterested witness may recognize the handwriting of the testator or have been told by the testator that he wrote his own will, even though the witness was not present for execution. As my esteemed colleague noted, if the will is not entirely handwritten, it must comply with the statute of wills and be executed in the presence of two witnesses. A will may still be proven and probated even though one of the witnesses has predeceased the testator. Virginia allows for ex parte probate before the clerk of the court. The clerk may not recognize a questionable will, such that the proponent will be required to file a court proceeding for recognition of the validity of the will and probate.
- Q. I have a judgement from July 2011 and was granted a discharge in December 2011. How do I get the judgement off my file?
- A: Under Virginia Code Section 8.01-453, the clerk of the court may enter a satisfaction upon presentation of a certificate or at the direction of the creditor's attorney. Under Virginia Code Section 8.01-455, a judgment debtor can move the court to mark a judgment as satisfied if it has been paid or discharged and the costs can be allocated to the judgment creditor who failed to direct the satisfaction of the judgment. As my esteemed colleague Mr. Weed notes, bankruptcy may discharge the personal obligation on a judgment, but does not necessarily affect the lien that might have been acquired by docketing the judgment in land records.
- Q. My support order includes 75% of medical bills. I am getting billed $500 plus a month- it's a struggle. Modification?
- A: Child support orders in Virginia can be modified upon a threshold showing of a material change in financial circumstances. A child support order will normally include responsibility for a parent's income share of medical bills not covered by health insurance. It is not clear from your question why insurance does not cover such a large amount of out of pocket medical costs, and whether significant medical expense was known when child support was last determined. When child support is determined by the court, a party can argue for a deviation from the presumptively correct amount based on certain factors. You should discuss with an experienced Virginia family law lawyer whether you have sufficient grounds to demonstrate a material change in circumstances justifying a change in support.
- Q. Is it necessary to file for Divorce in VA if Marriage Certificate was not filed with court within 30 days of ceremony?
- A: Virginia's public policy favors marriage and the validity of marriage in the Commonwealth. As such, Virginia has several curative statutes that may validate imperfect marriages. In addition, a party who questions the validity of a marriage may file a suit to determine the validity of the marriage or affirm the marriage under Virginia Code Section 20-90. Any putative spouse questioning the validity of a marriage should consult with an experienced Virginia matrimonial lawyer to discuss how Virginia law might apply to the specifics of his or her situation.
- Q. Can a life estate be granted to income through a premarital agreement?
- A: Virginia has a premarital agreement act in Chapter 8 of Title 20 of the Code of Virginia. Under Virginia's premarital agreement act the fiances may address almost any legal issue arising from the marriage, including estate planning as follows: Virginia Code § 20-150. "Content of agreement. Parties to a premarital agreement may contract with respect to: 1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; 2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; 3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; 4. Spousal support; 5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement; 6. The ownership rights in and disposition of the death benefit from a life insurance policy; 7. The choice of law governing the construction of the agreement; and 8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty." It is important to consult with an experienced Virginia family law lawyer to discuss how to structure a contemplated premarital or antenuptial agreement so that it may be enforced in the future.
- Q. I want my marriage to end. My husband is mentally and physically abusive. He will not leave. He had stolen items he gave
- A: A spouse may file immediately in Virginia for a divorce from bed and board on grounds of cruelty or reasonable apprehension of physical harm, or desertion and abandonment. The pendente lite or temporary relief available after such a case is filed can include a protective order, exclusive possession of the marital residence, spousal support, and the payment of attorney's fees and costs to carry on the case. After a year of separation, the spouse may ask for a divorce from the bond of matrimony, either on a no fault basis, or for the original cruelty or reasonable apprehension of physical harm, or desertion and abandonment of the marital relationship, or other fault grounds. You should consult with an experienced Virginia divorce lawyer to discuss your situation and the best course of action.
- Q. If I own my car outright, can it be taken in a bankruptcy?
- A: Virginia is an opt-out state, which means you are given the Virginia state law exemptions and various federal exemptions, unless you do not otherwise qualify for Virginia exemptions under the bankruptcy code. Under Virginia poor debtor's exemptions, a resident may claim up to $6,000 in value in a personal use motor vehicle, and up to $10,000 in a motor vehicle necessary for use in the course of the debtor's trade or occupation, in addition to any value claimed under the Homestead Exemption. Virginia's Homestead Exemption has lifetime caps on the amount which may be claimed exempt, starting at $5,000 plus $500 for each dependent, and increasing to $10,000 at age 65. A disabled veteran with a service-related disability of at least 40% gets another $10,000. The Homestead Exemption could be claimed in any kind of property, real or personal, including in a motor vehicle. You should consult with an experienced Virginia bankruptcy lawyer to discuss what exemptions might apply to your particular circumstances.