Virginia Divorce & Custody Law

Divorce Case - Court Rules Parties Were Never Married

The following is an article from Virginia Lawyers Weekly written by Peter Vieth and published on October 14, 2011:

Man seeks divorce, is told he never was married
‘Affirmation of marriage’ statute used in rare case

A Fairfax County man who asked for a divorce instead got a court ruling that he was never married in the first place, with the judge finding he and his "wife" displayed "a complete lack of good faith" when they took their vows.

The judge determined neither "husband" nor "wife" believed they were really entering into a marriage when they went through with a ceremony in Florida for the benefit of family and friends who attended the wedding.

In fact, as the judge found, the couple had disagreed before the wedding day over a pre-nuptial agreement and decided to withhold their marriage license so they could decide afterwards whether to make their union official.

Discounting the man version of events, the judge even awarded $15,000 in attorneys’ fees to the woman’s attorney. The circumstances make the case unique, according to lawyers for both sides.

The decision of Fairfax County Circuit Judge Randy I. Bellows is contained in a transcript of a court hearing and resulting orders in Namvar v. Bittner.

The man invoked Virginia’s affirmation of marriage statute, Virginia Code § 20-90, which states, "When the validity of any marriage shall be denied or doubted by either of the parties, the other party may institute a suit for affirmance of the marriage, and upon due proof of the validity thereof, it shall be decreed to be valid, and such decree shall be conclusive upon all persons concerned."

Bellows put the burden on the wife, but he found she carried her burden of disproving the claim of a valid marriage "by a wide margin."

The couple had a fight before the ceremony about their prenuptial agreement and decided to call off the marriage, according to David N. Webster II of Herndon, the wife’s lawyer. The feuding fiancés had a problem, however. Their family and friends had flown to Singer Island, Fla., for the wedding. Rather than just send everyone home, Webster said, the couple decided to hold the ceremony but pocket the license so it could not be recorded.

Afterwards, the couple lived together in Fairfax County for about a month before separating, according to the man’s complaint. Four months after the ceremony, the woman gave birth to the couple’s daughter. Several months later, the man recorded the marriage license in Florida, Webster said.

The man insisted it was a real marriage – filing the license was just paperwork, he said.

"My client firmly believed they were married and wanted to conclude the marriage with divorce," said his attorney, Stephanie J. Smith of Fairfax.

The judge was not buying the man’s story.

"What I see happened here is that the parties could not reach agreement on the prenuptial, and a decision was made by the parties, mutually, that the license would be withheld from the officiant and therefore no marriage would take place that day," Bellows said.

By the time the man filed the license in Florida, he was facing his "wife’s" child support suit in New York state.

"[The filing] only occurred when it became a chip to be played by the plaintiff in the litigation that was taking place in New York," Bellows said. "So when they stood up and took their vows, I don’t find any good faith on the part of either of them."

Bellows declared the marriage invalid and dismissed the complaint for divorce. He refused to take up the issue of child support, which remains pending in a New York court. No appeal was noticed for the final order, entered Sept. 16.

The case is one of kind, Webster said, and analogous case law is rare. "There are so few cases involving Virginia’s affirmation statute," he said.

"It was fascinating for sure," said Smith.

Listen to me on the radio discussing Prenuptial Agreements

I recently appeared on the radio program "Blueprint For Wealth" on Federal News Radio. To listen to me discussing Prenuptial Agreements with host Wayne Zell, click on the following link, and then click on the archived show from June 4, 2011:

http://www.federalnewsradio.com/?sid=2220103&nid=437&_hw=blueprint+for+wealth

Can your spouse obtain your medical and therapy records?

This is a hot topic and one that is usually hotly contested. Medical and therapy records contain private, sensitive and potentially embarrassing information that you probably do not want to share with your spouse, his lawyer, his lawyer’s staff, the judge, etc. Attorneys usually want to obtain the other spouse’s medical records for one of two reasons: (1) to prove that they have a mental issue/illness which impacts their ability to care for the children; (2) in the hopes that something in the records can be used to prove adultery. It is very common to issue a subpoena to the other spouse’s doctor/therapist, and for the "patient" spouse to respond by filing a motion to quash the subpoena.

Like many issues in divorce law, whether or not a judge will allow the subpoena is difficult to predict. Quite honestly, it depends upon the particular judge. But most judges are protective of the patient and require a fairly high level of proof that there is a need for the records and that the other spouse is not simply on a fishing expedition. For example, if you can allege really strange behavior on your spouse’s part, you are more likely to get mental health records from a therapist than if you simply allege that your spouse suffers from depression. Your chances of obtaining the records are higher if custody of children is at issue in your divorce case. While most attorneys correctly argue that a parent’s mental and physical condition is always at issue in every custody case, most judges require a further showing that the medical/therapy records are relevant in the particular case.

The relevant statute is Virginia Code 8.01-399 which deals with the "physician/patient privilege." Here is a link to 8.01-399: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-399.

Determinaiton of child support

The Virginia legislature considered, but did not pass this session, a bill that would have required the court to make an initial determination of child support and enter a temporary order of child support at any initial court hearing where a petition for child support had been filed. 

Query whether such an order would cause more filings for child support as a way to establish primary custody at the outset of the case when the court has not had time to consider the best interests of the children or even to hear any testimony or see any exhibits relative to custody or an appropriate custodial schedule between the parents?

Best interests of the child: School choice

The Virginia legislature considered, but did not pass legislation to establish a rebuttable presumption that it is in the child's best interests to remain in the current school system (phrased "last educational setting") prior to separation since this was the school to which both parents had last agreed.   The effect of such a new law would be to give the parent remaining in the marital residence the true "home court" advantage in any ensuing custody battle.

Equitable Distribution of marital debts

How many times have you just assumed that the Court would apportion debts in equitable distribution?  The Virginia legislature in the session just ended has now passed an amendment to Va. Code §20-107.3 to equitably allocate debts of the parties.

Court to have authority to award visitaiton rights to a family member of deploying parent

The Court will also have the authority under the newly passed legislation of the Virginia Assembly to award visitaiton rights to a family member of the deploying parent if the parent had physical custody of the child prior to the deployment and physical cusotdy is awarded to the nondeploying parent or his family during the deployment.

Doesn't this change the standard of Williams v. Williams for grandparents or other family members to obtain custodial rights if one of the parents objects?

TypePad Conversations » Answer this question!

Assigning visitation rights: Deploying Active military will now be able to assign custodial rights of visitation

The Virginia Assembly just passed legislation providing for authority of the court on motion to allow military parents on active duty who have been deployed to be able to assign his or her visitation rights with a child to a family member of the deploying parent.

TypePad Conversations » Answer this question!

‘Tis the Season – Fighting Over the Holidays

For separated and divorced couples with children, the holiday season can be painful instead of joyous. Celebrating the holidays without your children is difficult enough without fighting with your ex-spouse over who gets the holiday or what time the exchange is to occur. Calling the police and filing Emergency Motions is often the norm, as parents scramble to make sure they do not miss out on precious holiday time with their children. Such actions create hostile situations that can ruin the children’s holidays. Almost universally, the problem is poorly drafted custody/visitation agreements.

The secret to reducing holiday tug-of-wars over the children is having a crystal clear, well-drafted agreement. It is essential to sit down with a calendar and plot out the holidays over at least the next few years. Most often, parents alternate the “major” holidays/school breaks of Christmas, Thanksgiving, Spring Break, and the various religious holidays peculiar to specific faiths. The devil is in the details; for example, if you have a child who is 2 years old, should your agreement define how the school holiday periods will be divided once the child starts school? Do you want to alternate just Christmas Eve and Christmas Day, or the entire break from school? Do you want Spring Break in even-numbered years or odd-numbered years? Do you plan to travel over the holidays, such that you would rather alternate the entire Christmas break from school every other year, as opposed to dividing the break in half each year?

In short, it is crucial to clearly define: (a) the holiday period, including the exact beginning and ending times; (b) which parent has which holidays in even and odd years; (c) who is doing the driving for the visitation exchanges, and the location of the exchanges; and (d) making sure the agreement clearly states that the holiday visitation supersedes the regular visitation schedule. An agreement without grey areas will help you buy presents for your children instead of paying legal fees.

Happy holidays to you and yours.

How does collaborative law work for family law disputes?

The Collaborative Law process requires the parties to agree to this form of dispute resolution up front. A Collaborative Participation Agreement is signed by the parties and their attorneys. The parties commit themselves to settling their dispute without adversarial court intervention. The collaborative process is concluded by a collaborative settlement agreement, singed by the parties, resolving all matters considered in the collaborative process, or such portion of those matters as they were able to resolve.

During the collaborative process neither party will file any pleading or motion in court, nor will either party initiate court intervention during the collaborative process. If either party initiates court process then the collaborative process is terminated.

If the collaborative process fails, both attorneys and their respective law firms are disqualified from representing either party in the ensuing divorce process because what may otherwise be confidential client information has been shared between the parties and counsel.

The parties also agree to full disclosure of all relevant financial and personal information without the necessity of formal court procedures (commonly referred to as discovery). This self-disclosure requirement is a major distinction between collaborative process and litigation process.