Virginia Protective Order Violations: Wrestling with the definition of “contact”

“It depends upon what the meaning of the word ‘is’ is.” -William Jefferson Clinton

Personal political views aside, we all shared a collective chuckle when we heard President Clinton trying to suggest some grey area in the meaning of such a simple word. After all, it’s plain English, right? Well, believe it or not, our courts do stuff like this all the time. In an unpublished case the Virginia Court of Appeals addressed the meaning of the word “contact” in the context of a protective order which stated that the defendant “shall have no contact of any kind with petitioner.” Wyant v. Comm. of Va., Record No. 0726-14-3. Continue reading

Virginia Spousal Support – The Evolving Meanings of Cohabitation and Relationship Analogous to a Marriage

Virginia Code § 20-109(A) was amended in 1997 to include language terminating spousal support upon “clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more commencing on or after July 1, 1997, the court shall terminate spousal support and maintenance unless (i) otherwise provided by stipulation or contract or (ii) the spouse receiving support proves by a preponderance of the evidence that termination of such support would be unconscionable.”

So what’s “cohabiting”?  And what is a “relationship analogous to a marriage”?  Can two members of the same sex “cohabitate” in Virginia?  Can they be in a “relationship analogous to a marriage”? Continue reading

Virginia Spousal Support: Some Clarity on Termination Provisions in Agreements

Assume the existence of a marital agreement that provides that spousal support shall terminate forever upon the happening of a terminating event, like a cohabitation with a member of the opposite sex for a week or more.  Assume that this agreement was incorporated into a divorce order years ago.  What happens when the former wife does in fact cohabit with a member of the opposing sex for more than a week?  Can the husband just stop paying her?  Must he continue to pay her spousal support until such time as the court enters an order stating that her support terminated forever due to her cohabitation? Continue reading

Virginia Equitable Distribution: Courts Aren’t Stupid

Assume an agreement states: “The parties shall apply any and all remaining proceeds from the sale of the Dey Street [P]roperties toward the principal balance of the mortgage obligations on Shady Oaks . . . If the mortgages are satisfied prior to the sell [sic] of Shady Oaks, the parties will divide equally any and all proceeds from the sale of Dey Street [P]roperties.”  Assume that Shady Oaks properties were sold to pay off their mortgages.  Assume that the Dey Street Properties are sold thereafter.  What should happen to the Dey Street proceeds? Continue reading

Virginia Spousal Support: When Keeping it Unreal Goes Wrong

In the unpublished case of Gregory v. Gregory, Record No. 1367-14-4 (Va. Ct. Appeals 2015), the appellate court reversed a trial court decision awarding spousal support to the wife in the case because the trial ignored its copious findings that wife’s testimony was not believable.  Given the lack of credible evidence, wife failed to meet her burden of proof in establishing her need for spousal support, thus she should not have been awarded any spousal support. Continue reading

Virginia Custody: A Brief History Lesson on the Tender Years Doctrine (Part 2)

I wrote earlier today about the rise of the tender years doctrine, which our commonwealth’s highest court originally put as follows:

            “It is now generally recognized that the mother is the natural custodian of her child of tender years, and that if she is a fit and proper person, other things being equal, she should be given the custody in order that the child may receive the attention, care, supervision, and kindly advice, which arise from a mother’s love and devotion, for which no substitute has ever been found.  Human experience supports the policy that young children should not be deprived of the care of their mothers and of their love and tenderness, which may be counted upon most unfailingly. Experience also teaches that children grow up more normally when reared by young people rather than older people.

             Accordingly, it has been held that children of tender age, especially girls, will be awarded to their mothers, if fit and suitable; and that where no injury or disadvantage will result to the child, the feelings of the maternal parent must be given consideration.”  Mullen v. Mullen, 188 Va. 529 (Va. 1948)

Continue reading

Virginia Custody: A Brief History Lesson on the Tender Years Doctrine (Part 1)

It’s always fun to read old appellate court decisions.  These decisions often act as if their legal conclusions were obvious, and thus they often contain bold proclamations addressing a world that no longer exists (if it ever really existed in the first place).  These conclusions then get used as the basis of our law for years until someone realizes that the world has changed and therefore the law must change as well.  Mullen v. Mullen, 188 Va. 529 (Va. 1948), might be our court’s best example of this phenomena. Continue reading