Virginia Divorce & Custody Law

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.

‘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.

When Will My Trial Date Be?

If you file a divorce case in the Fairfax County Circuit Court (and this certainly is not unique to Fairfax), you might be surprised to learn that your final trial date will probably be between six months and one year from now. If you have children, and you and your spouse do not agree upon custody and/or visitation, that is a painfully long time to wait. What happens during the next year? If you moved out of the marital home and your spouse will not let you see the children, or if your spouse is dictating an unacceptable visitation schedule, or if you want custody, you will want the court to order a temporary custody/visitation schedule which will last until the final trial date (known as a "Pendente Lite" Order"). Unfortunately, you probably will not get such an Order in Fairfax.

What to Bring to Your First Meeting with Your Attorney

The first hour with your attorney is often the most valuable time your Family Law attorney will spend with you. Your attorney will gather the facts of your case, identify the issues that need to be addressed immediately and those that are not as urgent but still need attention. If you provide enough documents and information about the facts in your case, your attorney should be able to give you a fair assessment of your marital estate, the approximate level of support if the facts warrant it and tell you an approximate mid point for settling or splitting the marital estate.