Archive for February, 2012

What are the types of child custody in Virginia?

Wednesday, February 29th, 2012

There are two types of child custody in Virginia. Legal custody and Physical custody.

Legal Custody

A person who is granted legal custody of a child has the responsibility for the care and control of the child and the authority to make major decisions concerning the child. These responsibilities and decisions can include decisions about medical care, religious involvement and educational placements.

Often, the courts will rule that the parents of a child shall have joint legal custody of a child which means that the parents need to work together to make these major decisions regarding the child.

If the parents cannot work together for the benefit of the child, the courts can award legal custody to only one parent.

Physical Custody

A person who is granted physical custody of a child has the responsibility for the day-to-day care and control of the child.

In Virginia, the courts generally rule that one person will have primary physical custody of the child.

Generally, the primary address of the child is the address of the person who has been granted primary physical custody of the child. This address is used primarily for purposes of enrollment in public schools.

There are also rare situations where the parents of a child are awarded joint physical custody of a child, but this type of situation requires that the parents live very close to each other and that they get along well in order to provide the child with consistent rules. Most courts feel that if the parents could get along that well, they would probably still be living together.

Virginia also has a type of arrangement which is commonly called ‘shared custody’. This arrangement occurs when the court grants primary physical custody of the child to one parent, but the other parent has extended visitation which results in the child being in his or her care for more than 90 days in a year. Those 90 days should be counted as 24 hour periods and not just that the parent sees the child for a portion of a day for 90 or more days in a year.

What is ‘sole custody’?

Sole custody is awarded by the court when the court feels that one person should have all of the responsibility and authority for the care of the child both as a legal custodian and as a physical custodian.

Another way the court can arrive at the same actual result is to grant legal custody to one person and also grant physical custody to that same person.

Why custody can be important

A custody determination is important because it gives the authority and responsibility for the child to one or both parents, which provides much needed stability for the child.

It is also important because the custody determination lets everyone know who has the authority to make decisions regarding the child.

Physical custody is also used as a factor in determining child support obligations with the non-custodial parent generally ordered to pay a support amount to the custodial parent.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Can I throw away my records?

Monday, February 20th, 2012

I have a friend who does organizing for people as a business and I’ve used her services myself. Why? Because I always think I may need things later. It helps to have someone hold up a t-shirt that I haven’t worn for 15 years, and is in a size that I am sure I’ll never see again and make me say out loud that I really need to keep it. And yes, I now have 2 big bags of clothes to take to the charity resale store.

That works with clothes, but what about my financial records?

Part of me knows that I really don’t need my electric bills from 1994 from a house that has since been sold, but they really don’t take up much room and they would be difficult to recreate if I ever did need them.

This time of year, I hear people recommending that you dispose of financial records that are over 3 years old. This may be correct for tax purposes. I’m not a tax expert so I really can’t say.

But, if you want to apply for Medicaid, you need to be able to ‘look back’ 5 years to see if you’ve made a gift that might create a penalty period. Or rather, you need to be able to prove that you did NOT make a gift in the past 5 years.

And since I’m never sure of what may happen in my life, I want to be prepared, just in case.

So my goal for this spring is to dispose of financial records from 2005 and before. Yes I know that 2006 was 6 years ago and not five, but at least I’ll get rid of those electric bills from 1994!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Posted in Elder Law, Estate Planning, General Information | No Comments »

Who pays the debts when someone dies?

Monday, February 13th, 2012

This has come up twice in the past week.

In one instance someone asked me if they could file an ‘estate bankruptcy’ because the person who died had a lot of debt and there was not enough money to pay all of the outstanding bills. In another instance someone said that they knew that the children were responsible for their parent’s bills when they died.

Bankruptcy is only available for living beings or businesses. An estate can’t file for Bankruptcy. If there isn’t enough money to pay all of the debts, the estate is just considered ‘insolvent’.

If you are the executor or administrator of an insolvent estate, you are not automatically personally responsible for the payment of all of the debts, but you should make sure that you know the order in which to pay any of the debts because if you pay them in the wrong order you might be held personally responsible for the wrongful payment amount.

If you are not the executor or administrator of the insolvent estate, and you haven’t signed something saying that you have accepted responsibility for a parent’s debt, it is not your debt and you do not have to pay. Remember this when someone puts a paper in front of you to sign that you will accept responsibility to pay.

In fact, if you are not the executor or administrator of an estate, you don’t need to do anything at all.

You are not automatically responsible for your parent’s outstanding debts when they die just because you are the child.

Of course, if there are any assets in the estate, those assets should be used first to pay any bills and the heirs will only receive what is left. If there isn’t enough to pay all of the debt, there won’t be any left for the heirs.

So what happens to that unpaid debt? It just doesn’t get paid at all. It is usually just ‘charged off’ by the debtor as uncollectible.

If you are worried that you might have to pay someone else’s debts after they have died, you might want to consider talking to a probate attorney or the official who handles probate matters where the person died.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Statute of Limitations for Child Support?

Saturday, February 4th, 2012

About a year ago, I posted that there was really no statute of limitations on the payment of child support. That was true at the time based on the Virginia Court of Appeals interpretation of the law as published in the case of Adcock v. Department of Social Serivices, 56 Va. App. 334, 693 S.E.2d 757 (2010).

Mr. Adcock was ordered to pay the back child support, and he appealed that decision to the Virginia Supreme Court.

In November of 2011 the Virginia Supreme Court issued their ruling in the case of Adcock v. Department of Social Services, 282 Va. 383 which reversed the ruling of the Virginia Court of Appeals and says that since the child support obligations are set and cannot be modified after the date on which the obligation is due, any payments that were due and unpaid were judgments that are subject to the 20 year statute of limitations.

What does this mean? This means that the judgment to pay child support for any given month ‘expires’ 20 years from that month unless something is done to extend that judgment.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Posted in Family Law, Support | No Comments »

Do you have a blended family?

Thursday, February 2nd, 2012

My parents were divorced and my dad remarried a woman who had children, so I come from a ‘blended’ family. I am also divorced from my children’s father and I’m now married to a man who has children from his first marriage. All to say that I know what it’s like to live in a ‘blended’ family.

I’ve heard that the schools now have projects to trace your family ‘bush’ instead of your family ‘tree’. It’s a sign of the times.

But, the laws haven’t quite caught up with society.

A step-child, even if they have been in your household and you have acted as their parent for their entire lives, is not considered your child for inheritance purposes. And problems can arise when a current spouse and children from a previous relationship all want to take ‘their rightful portion’ of an inheritance.

There are ways to take care of the ones you love by talking to an Estate Planning attorney and making sure that your estate is used the way you want. This is important for everyone.

It is even more important if you have a blended family.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Posted in Estate Plan, Estate Planning, Trust, Will | No Comments »