How To Turn Break-Up Stress Into A Meditative Experience

October 14, 2014

Have you ever heard someone say, “I am so stressed out–I’m in the middle of a nasty break-up/separation/divorce”? Maybe you were the one who said it. It’s a reasonable way to feel. There’s so much to consider when ending a relationship, especially one with the legal trappings marriage entails, that it gets overwhelming very quickly. How are the children coping? How are we splitting the house, the bank accounts, the business? Will I still be insured under my ex-partner’s policy? What about my benefits? The list of questions is very close to endless.

Now, have you ever heard someone say, “I’m in the middle of a nasty break-up/separation/divorce–I find it very relaxing”? If you did, you’d probably assume they were being sarcastic. While that statement tends toward hyperbole, know that you really can find something freeing and perhaps even relaxing about the process. It’s all a matter of perspective.

zenFirst, know that no two break-ups are the same. There is no formula that divorce lawyers or mediators can apply to a couple and achieve the same result every time. That means that there are no absolutes, no set-paths, no “perfect” divorces. Once you begin to understand that such a large life transition can’t ever be “perfect,” you can free yourself from the burden of trying to attain that perfection.

Second, realize that life transitions are dynamic and fluid by nature. It can often feel like you are constantly struggling just to keep up, but consider a river. If you try to fight the force of the current by obsessing over all of the inherent problems within a transition, you will quickly tire and drown. But give yourself over to the flow of the river, know that things will–and should–change, and you may find yourself floating lazily before you realize what has happened.

The next time you begin to feel overwhelmed by the flurry of activity and upheaval your break-up is causing, take a step back. Consider the necessity of the movement that keeps you from sputtering to a standstill. Remember that movement means progress. When you give up perfection and give into the transition, you may be surprised where life floats you to next.

Posted by Jane Baber, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


How to Stay Married for 64 Years

June 24, 2014

Source of Information & Advice: Interview of My 92 Year Old Neighbor

Several months ago I had the pleasure of interviewing a very lovely senior member of my community, Amelia Kalinowski. Having lived for92 years – and being married for 64 of those years – I knew Amelia had a thing or two to teach me and my readers about life, love and marriage. Boy, was I right! Though Amelia and I may not have been on the same page with all of her advice, she said over and over again “and that was how it was”. In other words, Amelia’s perspective and advice is based on a time when social rules were simpler and most people were more than willing to follow them. But depending on your perspective, much of Amelia Kalinowski’s advice is still very much applicable today. And, most important, Amelia’s methods of keeping a marriage solid certainly worked for her – for 64 years!

Our interview centered around the techniques, philosophies and methods that Amelia used during her marriage to her husband, Stanley, which lasted longer than most of my divorce clients and myself have even been alive! Specifically, I wanted to know:

  • Did Amelia find life-satisfaction and happiness as a result of being married to the same person for 64 years?
  • Did Amelia believe that her 64-year marriage was a match made in heaven?
  • Did Amelia attribute her nuptial longevity to hard work?
  • Did Amelia attribute her long marriage to a tenacious dedication to the belief that marriage is forever (as a result of her religion, or otherwise)?
  • Are there other secrets or, perhaps, a magical formula, that Amelia applied to her marriage that might help the rest of us?

Preliminaries of Interview: What is “Blogging”?

Amelia and I started our interview with a tutorial on “what is blogging?” This was followed by a short-session on how my laptop works . . . followed by an even shorter session on how the internet works (since I really have no idea). I asked Amelia’s permission to publish her wisdom, her stories and her advice on this blog and she obliged with pleasure. “I have nothing to hide!” she said. I got the impression, when interviewing this lovely woman, that she saw my blog article as one way of memorializing her husband, Stanley, who had recently passed away only a matter of months prior to my interview. I hope you enjoy reading this article as much as I enjoyed my time interviewing Amelia Kalinowski.

Where You Come From Has Bearing On Who You Become

Amelia found it very important to give me some background on her and Stanley’s lives before they got married. This led to a very interesting historical journey through life in upstate New York in the 20’s, 30’s and 40’s, and helped me understand and appreciate where Amelia’s beliefs, convictions, and methods came from. I have printed Amelia’s anecdotes because, as I have learned through my practice, people’s histories often have a great bearing on the success or failure of their marriage . . . including whether or not their parents were divorced (which was not a topic of my interview; but, which I know to be true), the values they were raised with, and their perception of the world.

“People’s histories often have a great bearing on the success or failure of their marriage. This includes whether or not their parents were divorced, the values they were raised with, and their perception of the world.”

Amelia’s Childhood

Amelia Kalinowski née Jaros was born in 1923. She was a first generation American-born little girl with Polish immigrant parents. Amelia did not grow up with much at all in terms of material possessions. Nonetheless, her family was grateful to be in America after having endured a hard scrabble life in Russian-controlled Poland.

The family originally settled in Niagara Falls, New York, along with many other   Polish immigrant families. Eventually, young Amelia moved to Buffalo, New York, where she ended up spending the majority of her life. Her father, who was literate only in Polish, worked at a factory weighing and grinding bones into animal feed. This was a tough, dirty job that polluted the lungs of the workers, with Amelia’s father being no exception. Her mother, in addition to being primarily responsible for the care of the children and home life, also worked hard as a cleaning lady. Though she never learned to read or write, Amelia’s mother was smart and believed in encouraging all of her children to be successful and productive in this new country of opportunity.

Amelia had three brothers. Two out of the three eventually married. The third brother, just a year older than her, never married and, as was customary at the time, stayed on at the family home. She also had a big sister. Amelia was the baby of this family of five children. As kids, they all went to public school and also attended half-day Polish Catholic School. Like a lot of families, both then and now, hide-and-seek was a favorite pastime. Amelia was not shy to tell me, though, that beer and moonshine drinking (at least for the boys) was quick to replace hide-and-seek in their teenage years. This carousing, however, was never permitted to get in the way of the boys working for the Civilian Conservation Corps, building parks and sewers, during the Depression years. Despite their hard work, the love, and the support of a big family, life was pretty hard for Amelia’s family and for the other immigrant families in pre-World War II New York State.

As a result of the challenging life conditions, Amelia told me that “there just wasn’t divorce.” As she clearly stated, “More kids, less divorce”. From my perspective, I found it interesting that Amelia never mentioned, in our interview, the prohibition against divorce by the Catholic Church. This never came up. Instead, she focused on the fact that divorce was such a mess for families that most people simply did not consider it an option. “You had to learn to get along.”

I got to wondering, then, if our high divorce rate these days is really just one of the many ugly consequences of our wealth and privilege, much like pollution, clinical depression, and heart disease.  People today do not “have to learn to get along”. We can operate as individuals due to our economics. . . and we even have a term for how this is accomplished when there are children involved: “co-parenting”. Too bad we all aren’t clever enough to learn to live the good life, but without half of our American families splitting apart as a result.

During the Great Depression, “ . . . divorce was simply never seen as an option.” I got to wondering then, if our high divorce rate, these days, is really just one of the many ugly consequences of our wealth and privilege, much like pollution, clinical depression and heart disease?

Stanley’s Childhood

Amelia spent a good portion of our interview, too, talking about her husband’s childhood. Amelia’s husband, Stanley Kalinowski’s, upbringing was similar to Amelia’s, but with one great exception: He lost both his mother and father when he and his siblings were just teenagers. Instead of this tragedy tearing them apart (as it often does), the Kalinowski children were galvanized by this loss and made a conscious determination to “stick together like glue”.

This orphaned group of adolescents pooled together all of their resources (which wasn’t much) together and, as unbelievable as it sounds, were able to purchase a home big enough for all of them to live in. Stanley’s oldest sister, Florence, who was just 16 years old, became the head of the house. The siblings took care of each other and they all pitched in to keep the home going. They all had chores, overseen by Florence, and their primary method of making money was working at a nuts and bolts factory down the road from their home.

Unfortunately, one of the Kalinowski children, Valeria, the youngest, died around age 20. The rest of them—Al, Stanley, and Eleanor—thrived under Florence’s supervision and each of them took part in serving their country in World World II. Following his tour of duty, Florence saw to it that Stanley entered and completed college at Canisius.

Stan and Amy on their honeymoon.

Stan and Amy on their honeymoon.

Getting Married

Not long after the war, Amelia met her husband-to-be, Stanley. She and a girlfriend had taken a bus from Buffalo to North Tonawanda, New York where, as Amelia told me “ the fun was!” Amelia described North Tonawanda as “a big bar town that even had a Whirlitzer Jukebox factory!” Upon reaching their destination, the Buffalo girls headed to a bar/dining establishment where, they knew, the young men tended to hang out in the drinking area. The young ladies all tended to stay in the dining room. Of course, the young men all had a good view into the dining room, from the bar, where they could see the young women preen and giggle. It was a soft “bar scene” in North Tonawanda.

Amelia married Stanley in 1949. She was 28, and he was 31. This was pretty late-in-life for a marriage, back then, but the war delayed a lot of people’s nuptials. Amelia made it very clear to me that she and her husband did not engage in intimacies (with each other or anyone else) until they were married. Amelia felt this was a form of respect that people showed for themselves and for their future spouse. There was no question in her mind but that starting a marriage and then starting a sex life – in that order – was the best way to go about this aspect of life. She also let me know that this long since departed social norm used to considered part of the basic foundation necessary for a happy marriage.

Amelia, and others like her, have pretty much “seen it all” in terms of human behavior and relationships.   Like so many elderly people, Amelia Kalinowski had a plethora of good advice, a broad perspective, and the type of wisdom that comes only from having been around a long time.

Here is Amelia Kalinowski – at 92 years old and having been a wife for 64 of those years – and her advice for staying married and being happy:

Amy and Stan with their three daughters, Kathy, Lizzie, and Val.

Amy and Stan with their three daughters, Kathy, Lizzie, and Val.

Amelia’s Recipe for a Long Marriage:

  • Give and take. No one should ever expect to win every argument, be right all the time, or always get his or her way. “If you don’t know how to ‘give and take’,” Amelia told me, “You have a problem!”
  • Always make up after a fight. Amelia let me know that she had a pretty wicked temper when she was younger. She didn’t always fight fair and, as a result, often had to apologize for both her behavior and for whatever the fight was about. Amelia believes that couples should always make up after a fight and that it really doesn’t matter whose fault the fight was; someone always needs to start off with an apology.
  • Husbands need to feel that they are in charge. Amelia believes that most men need to think that they are the boss. Though many women don’t like this idea, Amelia thinks that letting someone feel that they are the boss is not the same as them actually being the boss.
  • Women need to do the lion’s share of mending relationships. Amelia told me that, as far as she is concerned, men do not forget being wronged. Ever. They tend to stay mad. This is true even when they don’t show it. Women, on the other hand, have a better capacity to forgive, forget and move on. Thus, women need to be vigilant in moving a couple beyond their skirmishes. This is done with apologies and an orientation toward focusing on what really matters in the long run.
  • Women need to be in charge of their family’s emotional well-being. Men tend to run from all things emotional, according to Amelia. Women tend to be much more comfortable with the emotional ups and downs of everyday life as well as the emotions surrounding life’s big events. If you want emotionally balanced children, therefore, the woman needs to be in charge of the family’s emotional well-being.
  • The husband and wife each need their jobs clearly delineated. Every area of a family’s life needs a chief-in-charge. Both spouses may participate, to a certain extent, but everyone needs to be clear about who is ultimately in charge/has primary responsibility. These areas include: disciplining of the children, religious upbringing, making the money, housework, yardwork, social scheduling, etc.
  • Having high expectations of your spouse and children is a good thing. People tend to rise to the level of what is expected of them. Make your expectations clear and don’t spend a lot of time discussing those expectations.
  • Children need discipline. In order for there to be peace in the home, discipline is important. Marriages to do not thrive where the children are undisciplined.
  • Physical violence is never acceptable.
  • Do whatever it takes to move beyond anger. The longer you stay angry, the harder it is to get out of that mode – and the more miserable you will be, your spouse will be, and your children will be.

“If you don’t know how to ‘give and take’,” Amelia told me, “You have a problem!”

What happily ever after really looks like.

What happily ever after really looks like.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


How Mediation Can Help – Even When Divorce Litigation Is Pending

June 10, 2014

Divorce-MediaitonIf you are engaged in divorce, you may be battling your case in the traditional attorney-run court system. If this is your situation, but you yearn for a more civilized, less expensive method of settling your divorce matters, you can consider Mediation at any time in the process.

I see clients and settle cases at all stages of the separation and divorce process. For example:

  • Mediation works well in cases where attorneys are never involved;
  • Mediation works well in cases where attorneys are consulted prior to the mediation, but are not involved in the mediation process;
  • Mediation works well when attorney services are utilized only for review of the draft Settlement Agreement; and
  • Mediation works well when clients are deeply involved in litigation, but want to come up for air and try and settle their case in a more orderly, less contentious fashion.

Most clients don’t know that Virginia attorneys are required to advise their clients that there are alternative methods to resolve their disputes outside of litigation. (This mandate is pursuant to the Comment Section of Virginia Supreme Court Rule 1.2.) If your divorce attorney has not advised of you that there are Virginia Supreme Court Mediators ready to assist you with your divorce settlement needs, ask him or her if there is any reason why Mediation, or any other form of Alternative Dispute Resolution (ADR), is not appropriate for your circumstances.

Certain situations merit consideration of “taking a break” from litigation. You may wish to consider Mediation if:

  • Litigation is doing harm to your children.
  • Litigation is causing emotional turmoil and an inability to focus.
  • There is a need to feel that all “friendly” avenues were tried before either of you “pull the trigger” in court (and unleash a torrent of bad feelings that may last a lifetime);
  • You think if would be a good idea to treat the property and debt issues completely separate from the child-related issues.
  • You and your attorney no longer see eye to eye;
  • There is one single issue that is holding up the entire settlement;
  • Your attorney fees feel like the National Debt.

If you think Mediation is the way to go, give Robin Graine, JD, at Graine Mediation, a call: 571-220-1998. If you just want to learn more about Mediation, or if you want to discuss whether Mediation is right for your case, give Graine Mediation a call. Robin would be happy to answer you questions: 571-220-1998.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Virginia Divorce – Equitable Distribution of Pre-Marital Property after the David Case

June 3, 2014

In Virginia, property that is owned pre-marriage is known as “separate property”. Separate property may consist of:

  • tangible assets (e.g. automobiles, antiques, furniture),
  • liquid assets (e.g. bank accounts, mutual funds, stocks),
  • retirement assets (e.g., 401(k)s, TSPs, IRAs, pensions),
  • real estate, and
  • business interests

Under §20-107.3 of the Virginia Code, the spouse who came into the marriage with the separate property is permitted to keep that property as his or her own individual property. That means that the separate property will not become part of the marital estate upon divorce and will not, therefore, be eligible for division and distribution by the court.

Contrary to many people’s belief, in Virginia, even the increase in value of a spouse’s separate property is also considered that spouse’s separate property. There are, however, exceptions. The increase in value of separate property is considered marital property (divisible and distributable by the court):

(1) to the extent that either one or both of the parties, during the course of the marriage, exerted significant efforts with regard to that separate property (e.g. blood, sweat and tears; time spent in the management of that separate property)

AND

(2) to the extent that there is a substantial increase in the value of the separate property.

In a court of law, there are different burdens of proof assigned to the parties. That means that the spouse who originally owned the separate property, as well as the other spouse, have a particular set of facts to prove, with evidence, before a court will rule in that spouse’s favor. (Think of “burden of proof” as “burden to prove”). In Virginia, the burden of proof is on the non-owning spouse to prove that the marital efforts (the efforts of one or both of them) were significant and that the property increased the value, during the marriage, by a substantial amount. Until the recent Virginia Supreme Court case of David v. David, (Va., 2014)http://caselaw.findlaw.com/va-supreme-court/1658789.html, the non owning spouse was also looked to for proof that the cause of the increase in the value of that asset was, in fact, directly related to the efforts of one or both of the spouses during the marriage[1].   This is no longer true after the David case. David clarified this area of the law (even though, on its face the statute seems to have always said this!) and the burden of proof now squarely sits on the shoulders of the spouse with the separate property interest to show that his or her efforts were not, in fact, the direct cause of the increase in value of the property.

For example: Husband owned a business prior to the marriage. During the marriage he worked like a dog (significant efforts!) on the business. When the business was valued at the time of the separation and divorce, it was clear that it had increased substantially in value during the course of the marriage. Under the old way the Virginia courts viewed the law, the wife would have had the burden to show that it was the Husband’s efforts – directly – that increased the value of the property.  Since David, however, the burden has shifted. It is now the separate property owner (the Husband, in this example) that has to prove that his efforts did not, in fact, increase the value of the asset.  All the Wife needs do is show (her burden of proof) that (1) the Husband exerted significant efforts; and (b) that the business went up in value.

Whenever there is an issue of hybrid property in a divorce case, it is best to seek the advice of a professional: a lawyer-mediator and/or an experienced divorce attorney.

Property-Division5

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

 

[1] In Virginia, “during the marriage” means from the date of marriage to the date of separation (either adjudicated by a court or agreed to by the parties). Many other jurisdictions define “during the marriage” to also include the period of time between the parties’ separation and divorce. In mediation, clients are free to define “during the marriage” either way and, sometimes, define “during the marriage” to include that period of time between the date of marriage and the date of the first mediation session.


Mine, Yours, and Ours in a Virginia Divorce

May 6, 2014

How Do Virginia Courts & Mediators View Equitable Distribution When a Husband and Wife Commingle Separate (Non-Marital) and Marital Property?

In Virginia divorce law, there is a lot of confusion when it comes to the division and distribution of property[1] when the divorcing couple does not agree on whether that property is “marital property”, “separate property” or a combination thereof (known as “hybrid property”). This confusion is unfortunate because how property is classified is extremely important in terms of what is on and what is off limits to Virginia judges when they make their “taketh and giveth” decisions. In a Virginia divorce, courts may only order the division, distribution and sale of jointly owned marital property.

The perplexing, often counterintuitive state of the law in Virginia, when it comes to classifying property as “marital” (subject to judicial division, distribution and sale) or “separate” (off limits to judicial orders) is the cause of intense litigation and outrageous attorney fees – which is never good for families.

Some of the biggest court battles, in a Virginia divorce, occur when property has characteristics of both marital and separate property – known as “hybrid property”. With hybrid property, Virginia judges are only permitted to order the division, distribution and sale of that portion of the hybrid property that is classified as marital. The problem is that not all reasonable people agree on how and where that split between the two classifications should take place. In litigation, the final decision, after presentation of the evidence, lies with the judge. In comparison, clients who mediate make those decisions themselves after the mediator has informed them of the law, legal culture and trends in their area.

In this article, I have broken down the Virginia statutory law in this area, which is found in §107.3 of the Code of Virginia. This is the basic law and, though it does not get into some of the complexities and nuances that attorneys sometimes wrangle with in the form of “case law”, §107.3 is robust in its coverage of this area of the law. For a more comprehensive view of how hybrid Real Estate matters are handled, though, see my blog article “The Wild West of Divorce Law as Concerns Real Estate in Virginia”.

In a mediated, versus litigated, divorce settlement, divorcing couples have the option of applying or not applying the legal definitions of and methods of classifying property. A good Virginia divorce mediator will be able to inform you of what the law is, and how it is usually applied in court, but it is ultimately up to the divorcing couple to decide whether or not to apply §107.3 to the various issues in their case.

What guides couples in mediation, in addition to the law, when it comes to classifying property as marital, separate or some of each (“hybrid property”), depends on several factors which include, but are not limited to:

  • the parties’ sense of personal justice and fairness;
  • the parties’ history of financial management, discussion and planning;
  • the parties’ goals both before the decision to divorce and post-divorce;
  • the needs of the children; and
  • the needs and fears of both spouses.

 In mediation, parties make their own decisions about what is “good and right and proper” with regard to the classification, division and distribution of property in a divorce situation – even if their decisions are not in line with what a judge could do. Often times, mediation clients make much better decisions for their unique circumstances than a judge could ever do.

             The material in this article may seem overwhelming and . . . it is! According to many of my clients, the law in this area is not only confusing (until I explain it to them J), but often counterintuitive. Hopefully, after reading my breakdown of Virginia Law in this arena, you will not find it too confusing – but I almost guarantee that some readers will still find it counterintuitive, unfair, ridiculous and/or in need of a revamp. Nonetheless, this is the law.

BASIC DEFINITIONS

Q: What is SEPARATE PROPERTY?

A: Per §20-107.3(A)(1) of the Virginia Code, SEPARATE PROPERTY is that property which was:

  • Acquired BEFORE the marriage;
  • Acquired by INHERITENCE;
  • Acquired by GIFT (to only 1 spouse, not to the couple; not a gift from one spouse to the other);
  • Acquired as a result of an EXCHANGE FOR or from the PROCEEDS of a SALE of Separate Property

Also, in order for that separate property to maintain its classification as separate property, it must be maintained separately (i.e. not “commingled”).

Q: What is MARITAL PROPERTY?

A: Per §20-107.3(A)(2) of the Virginia Code, MARITAL PROPERTYis that property which was acquired by each party during the marriage (and which is not separate property as described in §20-107.3(A)(1)).

Q: Are there PRESUMPTIONS?

A #1: It is PRESUMED that all property (including retirement benefits) acquired by either spouse DURING THE MARRIAGE AND BEFORE THE LAST SEPARATION of the parties (with the intention, by at least one of the parties, that the separation be permanent) is MARITAL PROPERTY . . . unless there is “SATISFACTORY EVIDENCE” (the code’s phrase), pursuant to §20-107.3(A)(2), that it is separate property.

A #2: It is PRESUMED that all marital property is JOINTLY OWNED unless there is a deed, title, or other clear indicia that it is not jointly owned.

Q: Is Jointly Owned Property Presumed to be Marital Property?

A: NO! Per §20-107.3(A)(3)(f), when property is retitled in the parties’ joint names (JT), the retitled property is deemed TRANSMUTED to marital property, except to the extent that contributed property is RETRACEABLE by: (a) a PREPONDERANCE of the evidence, and (b) the act of retitling was NOT tantamount to the making of a GIFT.

NOTE: Virginia Law does not presume that retitling of separate property into the married couple’s joint names, during the marriage, defines that retitling act as “gifting of” that property to the marriage! §20-107.3(A)(3)(h).

COMMINGLING, TRANSMUTATION & TRACING

            (1) Definition – Commingling: The act of contributing one classification/category of property (e.g. separate property) into another classification/category of property that has the adverse classification/category (e.g. marital property).

            (2) Definition – Transmutation: When property is commingled, the contributed property takes on the classification of the receiving property = “TRANSMUTATION” (i.e. it is “swallowed up” and “disappears” into the receiving property thereby losing its prior classification status.

            (3) Tracing per 20-107.3(A)(3)(d): Although commingled property is automatically transmuted to the receiving property’s classification, that contributed property may not transmute to the receiving property’s classification, to the extent that it is RETRACEABLE by a:

  • PREPONDERANCE of the evidence (the evidentiary standard required of the party who did the contributing)

and . . .

  • Was NOT a GIFT. NOTE: Virginia Law does not presume that a commingling event defines the transaction as a “gift” (unlike in many other jurisdictions). §20-107.3(A)(3)(h)

Frye v Frye, Record No. 1829-10-4, May 03, 2011 – VA Court of Appeals; Robinson v Robinson, 46 Va.App. 652, 621 S.E.2d 147, Va.App., October 25, 2005 (NO. 1879-04-2); Theisman v Theisman, 22 Va.App. 557, 566, 471 S>E>2d 809, 813, aff’d on reh’g en ban 23 Va.App 687, 479 S.E.2d 534 (1996); and others: To establish the existence of a gift, such that a spouse’s separate property became marital property for purposes of an equitable distribution, the spouse claiming that there was a gift is required to prove, by CLEAR AND CONVINCING EVIDENCE, the following three elements:

(a) The INTENTION on the part of the donor to make the gift;

(b) The DELIVERY or TRANSFERof the gift; and

(c) The ACCEPTANCEof the gift by the donee.

(4) Newly Acquired Property per 20-107.3(A)(3)(e): When marital and separate property are COMMINGLED into NEWLY ACQUIRED PROPERTY[2] during the marriage[3] (defined below), resulting in the loss of identity of the contributing property, the commingled property is then transmuted to marital property, except to the extent that the contributed (non-marital) property is retraceable by a

  • PREPONDERANCE of the evidence (the evidentiary standard required of the party who did the contributing)

and

  • Was NOT a GIFT.   NOTE: Virginia Law does not presume that acquiring new property, during the marriage, with separate property defines that transaction/purchase as a “gift”. §20-107.3(A)(3)(h).

If the evidentiary burden is met, then the contributed property will retains its original classification. 20-107.3(A)(3)(f)

(5) Retitled in Joint Names per §20-107.3(A)(3)(f): When property is retitled in the parties’ joint names (JT), the retitled property is deemed transmuted to marital property, except to the extent that the contributed property is retraceable by a

  • PREPONDERANCE of the evidence (the evidentiary standard required of the party who did the contributing)

and

  • Was NOT a GIFT. NOTE: Virginia Law does not presume that retitling separate property into the married couple’s joint names, during the marriage, defines that retitling act as “gifting” that property to the marriage. §20-107.3(A)(3)(h) (although the opposite is true is other jurisdictions)

If the evidentiary burden is met, the contributed property retains its original classification. 20-107.3(A)(3)(f)

(6) One Party’s Separate Property is Commingled into the Separate Property of the Other Party per 20-107.3(A)(3)(g): In this type of situation, each party is entitled to be reimbursed the value of their contributed property to the extent that the contributed property is retraceable by a

  • PREPONDERANCE of the evidence (the evidentiary standard required of the party who did the contributing)

and

  • Was NOT a GIFT

(7) The Separate Property of Each Party is Commingled into the Parties’ Newly Acquired Jointly Owned (Marital) Property per 20-107.3(A)(3)(g): In this type of situation, each party is entitled to be reimbursed the value of their contributed property to the extent that that contributed property is retraceable by a

  • PREPONDERANCE of the evidence (the evidentiary standard required of both parties)

and

  • Was NOT a GIFT

INCREASES IN VALUE OF SEPARATE PROPERTY & INCOME CREATED FROM SEPARATE PROPERTY

Q: If INCOME is Produced from Separate Property, is that Income also Separate Property?

A: Per §20-107.3(A)(1) of the Virginia Code, income acquired as a result of ownership in separate property remains separate unless:

  • The income is produced as the result of the PERSONAL EFFORTS[4] of either party . . .

but . . .

  • The income produced, as a result of the personal efforts of either party, is only classified as marital property TO THE EXTENT THAT THE INCOME PRODUCED IS DIRECTLY ATTRIBUTABLE TO THOSE PERSONAL EFFORTS. §20-107.3(A)(3) [the statute does not mention any need for the personal efforts to be “significant” or for the income produced to be “substantial”, in contradistinction to increases in value]

Q: If there is an INCREASE IN VALUE of Separate Property, is that Increase in Value also Separate Property?

A: Per §20-107.3(A)(1) & §20-107.3(A)(3) of the Virginia Code, the Increase in Value of Separate Property remains separate unless:

  • The Increase in Value is due to the PERSONAL EFFORTS of either spouse

                 and . . .

  • The Personal Efforts were SIGNIFICANT

and . . .

  • The Increase in Value must be SUBSTANTIAL

but . . .

  • The Increase in Value becomes Marital Property only to the EXTENT that the INCREASE in Value is DIRECTLY ATTRIBUTABLE TO those PERSONAL EFFORTS (“Active Appreciation”)

See Courembis v Courembis, 43 Va.App. 18, 595 S.E.2d 505 (2004) and Divorce Source article: http://www.divorcesource.com/research/edj/appreciation/04jun61.shtml

Q: If there is an INCREASE IN VALUE of Separate Property due to CONTRIBUTIONS of MARITAL PROPERTY to that Separate Property, is that Increase in Value also Separate Property?

A:   Per §20-107.3(A)(1) of the Virginia Code, the increase in value of separate property, which is the result of marital property contributions, changes the classification of that increased value to marital property

BUT . . .

  • Only to the EXTENT that the INCREASE IN VALUE is DIRECTLY ATTRIBUTABLE to the marital contribution. (§20-107.3(A)(3))

BURDENS OF PROOF

Under §20-107.3(A)(3)

Q: Increase in Value: Who bears the burden of proof when there is a question regarding PERSONAL EFFORTS (during the marriage, i.e. marital efforts) or CONTRIBUTIONS OF MARITAL PROPERTY having the effect of increasing the value of separate property?       

A-1: The NON-OWNING SPOUSE (the spouse without the separate property interest) bears the burden of proving that:

  • the contributions of marital property and/or personal efforts (during the marriage by either or both spouses, i.e. marital efforts) were made;

                   and . . .

  • the separate property increased in value (no increase in value, discussion over!).

Once this burden of proof is met then:

A-2: The burden SHIFTS, and the OWNING SPOUSE (the spouse with the separate property interest) bears the burden of proving that:

  • the increase in value (or some portion thereof) was not caused by the contributions of marital property or by the personal efforts of one or both spouses. §20-107.3(A)(3).

Q: What is the Burden of Proof in terms of Debts Acquired After the Marriage (in Virginia = after Separation) being classified as Marital Debts?

 A: Per §20-107.3(A)(4) – To the extent a party can show, by a PREPONDERANCE OF THE EVIDENCE, that debt acquired post separation was “incurred for the benefit of the marriage or family, the court may designate the debt as marital.”

Q: What is the Burden of Proof in terms of Debt Acquired During the Marriage being Separate Debt?

 A: Per §20-107.3(A)(5) – To the extent a party can show, by a PREPONDERANCE OF THE EVIDENCE, that “the proceeds secured by incurring the debt were used, in whole or in part, for a non-marital purpose” that debt will be classified as separate debt.

COURT RESTRICTIONS ON TRANSFERS & DIVISIONS

 In Virginia, courts have no authority to order the division or transfer of separate property/debt OR marital property/debt which is NOT JOINTLY OWNED. §20-107.3(C). (Remember: Virginia assumes that all property acquired during the marriage is jointly owned, unless otherwise indicated by proper documents (e.g. account statements, deeds, titles, certificates, etc). §20-107.3(A)(2)

PERSONAL INJURY AND WORKER’S COMPENSATION

§20-107.3(A)(3)                                  §20-107.3(H)

The court may direct payment of a % of the marital share (defined below) of any personal injury or worker’s compensation recovery of either party.

  • This is true whether such recovery is payable in a lump sum or over a period of time.
  • The court, however, will only direct that payment be made as such recovery is payable to the injured party. (Same time periods, methods of payment, etc.)

Marital Share defined: The marital share of Personal Injury Payments or Worker’s Compensation is defined as: That part of the total PI/WC recovery attributable to LOST WAGES AND/OR MEDICAL EXPENSES that are not covered by health insurance accruing during the marriage (before separation).

If you are considering divorce, and have a situation wherein separate property has been commingled with marital property, mediation may be the best and least expensive method of working through this issue and coming up with a mutual agreeable solution for settlement. Give Graine Mediation a call at 571-220-1998 to discuss your situation. Mediation is appropriate for most people who are considering divorce unless there is a history of domestic violence, child abuse or concealment of assets. Whether you choose Graine Mediation, or opt for another mediation firm, and there are issues of hybrid (commingled) property, consider choosing an attorney-mediator who knows the law and can guide you through the complexities of this area of Virginia law.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

 

[1] “Property” is a comprehensive terms that includes personal property, real property, tangible property and intangible property. That means that the term “property” includes money, investments, houses, land, collectibles, furniture, automobiles, animals, and just about any other “thing” that you can think of (except children!).

[2] Example: Wife comes into the marriage with an inheritance ($). She uses that $, in combination with money she and H earned during the marriage, to purchase a boat (before the husband & wife separated).

[3] During the Marriage” defined:Property acquired from the date of marriage (DOM) through date of separation (DOS) (agreed or adjudicated). If couple agrees, “during the marriage” can also means DOM through date of divorce (not, the legal definition of separation in Virginia…but may be agreed upon by the parties (and is common in many of the jurisdictions)).

[4] Personal Efforts defined: Labor, effort, inventiveness, physical or intellectual skill, creativity, or managerial, promotional or marketing activity applied directly to the separate property of either party. §20-107.3(A)(3)

 


Just the Facts: Spousal Support in a Virginia Divorce

April 29, 2014

alimony-spousal-support“Alimony” and “Spousal Support” are the same thing. In Virginia, alimony is called “spousal support”. Also, alimony is sometimes referred to as maintenance. To the IRS, though, it’s all the same: “Alimony”.

Spousal Support is not guaranteed in Virginia. In Virginia, Spousal Support is neither presumed to be appropriate in any particular type of divorce case nor is it presumed unnecessary in any particular type of case in divorce case. Spousal Support is awarded on a case-by-case basis (both in the courts and in mediation).

Spousal Support is often awarded to SAHM’s (stay at home mothers), spouses who have a much lower income than the other spouse, spouses who have the potential to be financially independent (but need help getting there), and spouses who remain in an expensive-to-maintain family residence (usually for the sake of the children). Spousal support that is temporary, and designed to financially assist the receiving spouse while she (or he) prepares for employment, is referred to as “Rehabilitative Support”.

Need-Based Calculations versus Formula-Based (Pendente Lite) Calculations. In Virginia, the divorce courts utilize specialized calculations, called pendent lite spousal support calculations. This formula, originally intended to be a temporary calculation used for emergency situations, but now used often by the courts, lawyers and mediators when trying to determine a “fair” amount of spousal support, holds a lot of clout in the courthouse (Fairfax, especially). If your case looks like an alimony case, it is usually recommended that you run the pendente lite calculation to see what the “risk” is to the payer, and what the possible monthly award will be to the recipient.

To determine a more “real life” amount of necessary spousal support, a basic need-based approach is also helpful. Need-based calculations require both spouses to list their expenses (and projected expenses). These expenses are then compared to the net income available to support two households (which also includes the child support to be paid).

Often times, there will be a shortfall in both parties’ ability to pay their expenses. With budgeting adjustments, creativity and planning – alimony often being a chief player in the mix – Graine Mediation is able to help couples settle most cases despite the financial hurdles involved.

What are the tax effects of spousal support? The recipient is taxed on alimony at her (or his) tax rate. In other words, alimony is considered “earned income” by the IRS. The payer of spousal support is allowed to deduct the alimony paid, dollar for dollar, from his (or her) gross income, thereby decreasing the income upon which he (or she) will be taxed. In other words, the payer’s adjusted gross income is decreased by the amount of alimony paid. The party who receives the spouse support, on the other hand, will pay taxes on that money at the same rate as her (or his) earned income is/would be taxed.

What is the effect of spousal support payments on child support? Since alimony (spousal support) increases the gross income of the receiver, and decreases the gross income of the payer, the payment of spousal support decreases the presumed child support amount when calculated using the Virginia Guideline’s formula.

Is Spousal Support modifiable? Spousal support is modifiable – both in terms of the amount and/or duration – depending on how the Mediated Property Settlement Agreement is written (i.e. what the parties agree to). If a couple agrees that the spousal support award is to be modifiable, the terms of that modifiability must be stated very clearly in the Mediated Property Settlement Agreement. Otherwise, the court may base a future decision regarding modification of a spousal support award on the “default” standard: “Whether or not there has been a material change in circumstances not reasonably contemplated by the parties”.

Can there be no spousal support awarded at divorce, but a window left open for an award at a later date? The possibility of a future award of spousal support may be left open in a Mediated Property Settlement Agreement. The term for this is “Reviewability”. Clients may leave a period of review open — whether or not there is an actual dollar amount of spousal support to be paid. The period of time in which the parties may seek an award of spousal support (the review period) may be whatever is agreed upon by the parties. If a period of review is left open, but no time period is specified, the “default” in the law is 50% of the length of the marriage.

Leaving a period of review open is useful if the potential recipient feels insecure about his or her future earning power, but there is no actual need for alimony at the time of settlement.

How long does Spousal Support last? There is no clear law on this, but the rule of thumb in Virginia, when spousal support is deemed appropriate, is 50% the length of the marriage. It depends, of course, on the purpose of the spousal support (e.g. to help get a mother back on her financial-feet, to allow time for a parent to get re-trained/degreed, to offset the costs of living expenses for a specific period of time, to provide full and ongoing support to a former spouse, etc.)

In marriages of greater than 20 years, where the spouse seeking support was not an income earner, or her (or his) income is relatively low compared to the other spouse, permanent alimony (or at least up until the other spouse’s retirement) might be appropriate. This is not the law, but both parties should be aware of this legal trend in Virginia, especially where the spouse seeking the support is on the older side.

Is adultery a bar to spousal support? If the spouse against whom an award of spousal support is sought (the bigger earner) is able to prove the ground of adultery against the spouse seeking the support, there will be no alimony awarded. However, proof is often hard to come by. Also, if the court finds that a denial of spousal support to the adulterer would be “manifestly unjust”, the judge can award it to her (or him) regardless of the marital transgression.

What happens when the party receiving spousal support gets remarried or cohabits: Unless otherwise agreed by the parties, remarriage or cohabitation “in a relationship analogous to a marriage for a period of 1 year or more” (statutory definition) will result in the cessation of all spousal support payments. Of course, the term “relationship analogous to a marriage” is not clearly defined in the law and, in some mediations, clients are urged to discuss and determine what that phrase means to them (in order to avoid future litigation).

What does “Child Contingency” and “Recapture of Alimony” mean? The tax law related to alimony is fairly complex. Two areas, in particular, often come up in a divorce mediation: Child Contingency and Recapture of Alimony.

The Child Contingency rule has to do with the IRS’s sensitivity to taxpayers classifying payments as alimony (to get the tax deduction) when, in reality, those payments are really a form a support for the children (child support). The Child Contingency rule can be triggered when an award of alimony ends at the same time, or near the same time (within 6 months to a year, depending on the specific circumstances), of a child-related event (e.g. child turning 18 years old, graduation from high school). For more detail, see my Fairfax Divorce Blog article at http://fairfaxdivorceblog.com/?s=contingency

In a Recapture of Alimony situation, the IRS is looking for deductible alimony payments made, during the first three years following a divorce, which are actually more in the nature of a property distribution. Once again, the IRS is very sensitive to parties classifying payments as deductible alimony when those payments are more aptly classified as some other sort of non-deductible payment such as part of the equitable distribution and division of property (which includes the transfer of money from one spouse to another and may be in the form of a lump sum or paid out in periodic payments). For more detail, see my Fairfax Divorce Blog article at http://fairfaxdivorceblog.com/?s=recapture

Seek Professional Guidance: The law regarding spousal support in Virginia and the Federal Tax Code is fairly complex. Not only that, but the relationship between spousal support, child support and the equitable distribution of property and debt can be overwhelming and easily misunderstood. If you think that your case may involve a need/request for alimony, seek professional guidance from a lawyer-mediator. We are here to help: Robin Graine, JD – Graine Mediation – 571-220-1998.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Child Support Calculation in Virginia – Rebutting the Guideline’s Amount

April 8, 2014

moneyIn Virginia, the Child Support Guideline amounts come from a table which is set forth in the Virginia Code §20-108.2. That Guideline’s Table dictates the “presumptive amount” of child support to be paid in various situations. (See http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-108.2) That child support obligation (a single dollar amount that Virginia says your child will need in order to “make it” in the world based on his/her parents’ financial status) is then divided up between the parents, based on their percentage share of income produced and, in certain situations (see last bullet point below), the amount of time that the child spends with each parent. The parent that earns the most money is usually the parent who ends up actually paying child support to the other parent (though not always, depending on the custody share arrangements).

To calculate the presumptive amount of child support, you need the following information (which become the variables for the calculation):

  • gross monthly income for both parents (usually pretty simple except in cases of small business owners and sales professionals);
  • the actual cost of health insurance for the child (not the entire family);
  • the costs of work related childcare (though this is often factored outside of the calculation);
  • and, in cases where the child spends greater than 90 days (24 hour periods) with the non-primary parent (which also includes 50/50 custody cases), the number of days the child spends with each parent per year;
  • and, in cases where there is also a spousal support obligation, that amount, too, is usually put into the calculation.

The best way to calculate child support is with a professional – a divorce mediator or attorney. Unfortunately, most clients leave out key information or miss a variable when they try and figure their own child support amount with online calculators. At least, that has been my experience. It’s never a bad idea to get some preliminary numbers, but a professional should really assist before you get committed to (or get upset by!) a child support amount.

Once the parties agree/the judge determines what the correct variables are to run a Virginia Child Support Calculation (i.e. gross incomes, cost of health insurance, etc.), the amount calculated is presumed to be correct. However, in certain situations, a parent(s) does not agree with that number – and therein lies a big problem.

A battle over whether or not to apply the presumed child support amount in a Virginia divorce – whether in terms of ratcheting that number above guidelines or pushing it below guidelines – is one of the areas where the flexibility and low cost of divorce mediation should be considered. The “legalese” for this modification of the presumed guideline’s child support number is “deviation.”

Anyone considering deviating from the Virginia child support guidelines amount (especially if that parent is seeking a below-guideline’s number) needs to be aware that courts tend to like formulas. That means that if you do not think that the Virginia guideline’s calculation suits your family’s needs best, you will need to prove it. That means evidence. And that means lawyers and big money (if you choose to litigate instead of mediate).

Further, judges who follow the letter of the law must be very particular about the details of the evidence presented. Child-related matters are highly sensitive – and no judge wants to deny a child the basic support that is presumed needed (at least as far as the Virginia General Assembly is concerned) for anything less than a very, very good reason. (It is notable that the receipt of child support is the child’s right and not the custodial parent’s right. So, technically, even the custodial parent does not have the right to waive child support/agree to a below guideline’s amount of child support on his/her own since it is not that parent’s right to waive the child’s right to financial support!)

Courts are required to abide by the following protocol and criteria if and when there is a request by a parent to deviate from the Virginia Child Support Guideline’s Presumed Amount (pursuant to §20-108.1 of the Virginia Code):

The Court must make written findings that:

A. The application of the guidelines would be unjust or inappropriate in a particular case; and

B. There is justification as to why the child support obligation ordered by the court varies from the presumed guideline amount based on relevant evidence pertaining to: The ability of each party to provide child support and the best interests of the child, as follows:

1. Actual monetary support for other family members or former family members;

2. Arrangements regarding custody of the children, including the cost of visitation travel;

3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an educational or vocational program likely to maintain or increase the party’s earning potential;

4. Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential;

5. Debts of either party arising during the marriage for the benefit of the child;

6. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;

7. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

8. Any special needs of a child resulting from any physical, emotional, or medical condition;

9. Independent financial resources of the child or children;

10. Standard of living for the child or children established during the marriage;

11. Earning capacity, obligations, financial resources, and special needs of each parent;

12. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;

13. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;

14. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and

15. Such other factors as are necessary to consider the equities for the parents and children.

At Graine Mediation, we follow similar protocol to the courts when clients are considering a deviation from the Virginia Child Support Guidelines. However, in the Fairfax and Northern Virginia area – where lifestyles tend be quite expensive in terms of the stepped-up extracurricular activities, tutoring, overnight camps, etc. that children are involved in – there is rarely a case where a below-guideline’s child support obligation is agreed to by parents in mediation. (Remember: The guidelines were developed by the Virginia General Assembly for state-wide application – and most Fairfax/Northern Virginia families do not live the lifestyle or raise their children, in terms of dollars spent, like most of the families in other parts of Virginia.) Thus, below-guidelines agreements are rare in my mediation practice. However, above-guidelines deviations are often discussed but, even then, obligating parents to above-guidelines monthly child support amounts are often disregarded in favor of other more practical and creative solutions to award the support necessary while, at the same time, satisfying (as much as possible) each parents’ need for financial stability and control.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


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