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- James H. Wilson, Jr., Attorney & Counsellor at Law
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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. 8.01-296 VA code..I've given ALL documents to court and defendent by sheriff postings twice.
- A: Judgments or decrees by default are not allowed in divorce or annulment cases in Virginia. Rule 3:19 of the Rules of the Supreme Court of Virginia provides as follows: ..."(c) Default Judgment and Damages. (1) Except in suits for divorce or annulling a marriage, the court shall, on motion of the plaintiff, enter judgment for the relief appearing to the court to be due...." Further, divorce cases require corroboration, independent of the admissions of either party. This requirement originated in the era of fault divorces, to prevent parties from colluding to obtain a divorce. Virginia Code Section 20-99 provides the requirement of corroboration as follows: "§ 20-99. How such suits instituted and conducted; costs. Such suit shall be instituted and conducted as other suits in equity, except as otherwise provided in this section: 1. No divorce, annulment, or affirmation of a marriage shall be granted on the uncorroborated testimony of the parties or either of them. 2. Whether the defendant answers or not, the cause shall be heard independently of the admissions of either party in the pleadings or otherwise..." You should consult with an experienced Virginia divorce lawyer to discuss your options and the best course of action.
- Q. § 8.01-296. Manner of serving process upon natural persons. I have read this statute many times. Can you explain it
- A: The starting point for service of process in divorce cases is Virginia Code Section 20-99. The primary consideration in service for divorce cases is the relief sought. Under the concept of divisible divorce, a marriage consists of two components - a legal relationship or res, and property rights stemming from that legal relationship. The res or marital relationship follows each spouse wherever they go. If the spouse satisfies the residency requirements for the state, he or she can terminate the marital relationship without personal service on the other spouse. If a spouse desires to affect his or her spouse's property rights - support and equitable distribution - constitutional due process requires personal service on the defendant spouse. If relying on the state's long-arm jurisdiction to assert personal jurisdiction over the non-resident spouse, the petitioning spouse must allege sufficient contacts with the forum state to satisfy due process concerns, and satisfy service of process requirements. What trips up many pro se litigants is an attempt to assert personal jurisdiction that is not supported by the facts alleged or adequate service of process. As an example, service by publication does not create personal jurisdiction. The judge may refuse to allow a litigant to proceed in the absence of proper service of process.
- Q. What is a valid disclaimer of marital interest in Virginia and how do I go about drafting such a disclaimer?
- A: Spouses in Virginia can enter into enforceable marital agreements under Virginia Code Section 20-155 of the Virginia Premarital Agreement Act. These agreements take different forms, including prenuptial agreements or antenuptial agreements, marital agreements, separation agreements, stipulations and agreements, and property settlement agreements. These agreements may be comprehensive or address only a single issue, as you desire, although you might consider using this opportunity to enter into a comprehensive marital agreement. To be enforceable, marital agreements must comply with Virginia Code Section 20-151. You should consult with an experienced Virginia family law lawyer for the drafting of such an agreement.
- 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.