How Does Divorce and Shared Custody Impact Children?

January 13, 2015

Just like all major life events, divorce and shared (not necessarily 50/50) custody affects children differently. The impact depends on the child’s emotional make-up, resiliency, life experiences (age-effected) and how the people around them react to and comfort them through what is almost always a very saddening experience (even when the marriage was terrible).

There is no doubt that divorce, and splitting up a child’s custody, will have a great effect on that child in many ways. Thankfully, however, these effects are not always bad.  For example, if the marriage was horrible (abusive in any of the myriad ways abuse is manifested), divorce can sometimes have a positive impact on children — it frees them from the chronic and, often, debilitating stress that comes from living in a volatile home-life situation. However, if the marriage was only bad news between the parents — but the children were thriving despite the parents’ irreconcilable differences and, perhaps, lovelessness — there will certainly be a negative impact on the children.

“There is no doubt that divorce, and splitting up a child’s custody, will have a great effect on that child in many ways. Thankfully, however, these effects are not always bad.”

I believe, however, that good co-parenting relationships between parties, who share the custodial caretaking of their children, can counter-balance the negative impacts of divorce.

custody

NEGATIVE IMPACTS OF DIVORCE:

(1) Children of divorce will have a greater chance (by about 15%) of getting divorced themselves.  Of course, whenever I see this statistic, I have to wonder:  “Do children who are raised in a loveless marriage have a 15% greater chance of having such a love-desolate marriage themselves?”  Or, “Do children who are raised in a family where the parents disrespect one another’s every decision also grow up to have similarly disrespectful relationships with their spouses?”

(2) Children of divorce are at risk of becoming manipulative (one parent against the other) if there is a lot of child-driven opinion (not always bad; not always good) with regard to custody arrangements.

(3) Children of divorce who have focus issues (e.g. ADD, ADHD) and other special needs (e.g. autistic spectrum disorders, down syndrome, learning disabilities, processing disorders, anxiety disorders) may have those problems exacerbated by living in two separate homes. Of course, though these children’s progress in therapeutic intervention may initially slow down, a divorce sometimes actually helps these children develop higher-level coping and life skills in the long run.

(4) Children of divorce may excessively worry about their parents if either one of them does not “heal” well and/or there are financial problems after the divorce.  These types of “grown-up” worries are often overwhelming for children and can affect them academically and, certainly, emotionally.

(5) Children of divorce may feel alienated by a parent when he or she begins dating . . . and step-siblings (or “step-significant-other-children”) come into the picture.  The addition of significant others and their “kin” always presents big, emotionally-charged challenges for families. Feeling neglected and losing ground in esteem-building is what we worry about most in these types of situations.

(6) Children may become delayed/damaged in their ability to form trusting relationships with other people and, as they get older, their desire to form romantic partnerships may be stymied.

I always counsel parents, however, in my Divorce Mediation Practice www.grainemediation.com that the negative impacts of divorce can often be counter-balanced by really great parenting. For example:

POSITIVE IMPACTS OF DIVORCE:

(1) The historically “less involved parent” often steps up his or her involvement with the children.  As long as the kids are thriving, most experts agree that having both parents involved in a child’s life is best.  Why?  Because two parents in a child’s life creates a better opportunity for that child to develop his or her bonding and connectedness/attachment skills (yes, they are skills).  These skills form the basis from which all human beings learn to be social and develop the ability to have meaningful and loving relationships with other human beings.

Sometimes the reason for the increased involvement is less than noble-sounding (e.g. attorney advice, wanting to “show” the other parent that he/she actually cares, etc). What matters, however, is not the initial motivating factor that started the involvement in the first place. What matters is that both parents are positively involved in their child’s life and that both parents show that child how much they unconditionally love him or her.  Motivation is not always the key to determining whether a behavior is helpful or not — sometimes the act itself is what is most important and sometimes, believe it or not, the “good” motivation ends up following the act.  (Kind of like “smile and you might even end up feeling happy”.)

(2) Children can learn excellent conflict resolution skills from their divorced parents. Even if the parents “failed” at marriage, they can do a great job co-parenting the kids, which will, no question about it, require high level conflict resolution skills.  Remember: Your kids are watching everything that you do!

(3) Children tend to have more opportunity for one-on-one time with their parents post-divorce.  Most children love this special time with their mom or dad — as long as that parent actually pays attention to them (although not necessarily all 24 hours of the day).  Teens, however, may not be so thrilled with so much attention (but maybe they will appreciate it when they are older!).

(4) Parents have the opportunity for refreshing breaks from the hard work of parenting when the children are with the other parent.

(5) There is a greater tendency for both parents to be involved in the day-in-day-out academic, social, extracurricular, and emotional lives of their children (versus just one parent being the “CEO and COO of Kids” as is often the case in intact marriage situations).

(6) In good co-parenting situations, children have the opportunity to absorb the fact that big changes, though scary, are not always bad.  Children of divorce know that life is full of surprises. Those children whose parents do a good job at co-parenting (which often means that they do not prolong the bad feelings brought about with the divorce) can also absorb and learn through their parent’s role modeling that the ability to handle change and an undesired/unplanned rearrangement of one’s life is what makes, in many ways, for a successful and happy life!

Related Blogs:

http://fairfaxdivorceblog.com/?s=3+golden+rules

http://fairfaxdivorceblog.com/?s=shared+physical+custody

http://fairfaxdivorceblog.com/?s=millenial

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 Divorce Affects Adolescent Children

November 18, 2014

Getting divorced is difficult. Getting divorced when you have teenagers… Well, it can feel impossible. Luckily, a lot of very smart people have said a lot of incredibly useful things to help you navigate these tricky situations. A must-read is by Carl Pickhardt, a psychologist and writer, entitled “Surviving Your (Child’s) Adolescence.”unhappy teen

He starts by describing the difference between the way a child who is under 9-years-old and a child who is 9 or older reacts to the divorce of their parents. While the younger child will tend to cling and show anxiety, the older child begins manifesting signs of independence and pulling away. Since it is already typical for an adolescent to test their independence, this confluence can be destructive, rather than developmentally beneficial for the child.

Pickhardt runs down the ways in which a divorce can affect the adolescent. They can put off committing to their own relationships, or keep things overly casual, in order to forego the same pain they saw in their parents’ relationship. It can make them uncertain about their own feelings toward a romantic partner, if their new frame of reference becomes, “Well, I thought my parents loved each other, but now I’m not sure.”

To avoid these mires and pitfalls, Pickhardt suggests what he calls “The Ten Articles of Consideration;” a list of ways that parents can interact positively with their adolescent children and assure them of their continued love, devotion, and foster trust. I highly recommend you check it out for yourself, especially if these problems sound all too familiar. As always, Fairfax Divorce Blog will be here to continue giving our own advice and pointing out helpful articles whenever we find them!

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 Get Started in Divorce Mediation

November 11, 2014

phoneAre you considering mediation for your divorce, but don’t know how to get started? Don’t worry. It’s not a difficult process. At Graine Mediation, we start with an Intake Phone call: (571) 220-1998. We are usually able to help you start feeling better about settling your divorce case with that first call.

Before Graine Mediation takes on a new client, we require Intake Phone Calls with both parties. These initial calls are free. They last approximately 20 minutes each. Clients are encouraged to ask the mediator, Robin Graine, as many questions as they have.

The Intake Calls are confidential, which helps clients relax and be able to discuss difficult issues without fear of anything being repeated to the other party. Not only that, but by having the phone call in their own home or environment, free of charge, clients feel comfortable both in their environment and in the fact that they are not being charged by the minute! Our firm believes in generous Intake Phone Calls because it helps to ensure that our potential clients truly wish to mediate, and understand what mediation is. Also, it is part of our job to assess whether mediation is the best fit for each family’s unique circumstances and, if not, to make a more appropriate referral.

During the Intake Phone Call, I enable clients to:

  •    Tell their story;
  •    Sift through the facts of the case and begin formulating clear issues to be resolved;
  •    Focus in on their needs and, if it helps, the needs of the other party;
  •    Formulate clear ideas about what is best for their children (if they have children);
  •    Gather information and answer important questions;
  •    Discuss tasks outside of mediation that may be necessary in order to settle the case; and
  •    Discuss the strengths and weakness of various settlement options (which include everything from the tax implications to the emotional fall-out possible to children and parents).

This call also helps us at Graine Mediation do our job more efficiently. With an idea of the facts and issues in a case, as both parties see them — legal, financial, emotional – we are able to move forward much more quickly in the settlement process than would otherwise be the case. The parties, too, tend to be more goal-oriented and are in a better position in terms of helpful legal, financial, tax and parenting information.

If you have been considering divorce or custody mediation, but just don’t know where or how to start, give us a call at (571) 220-1998. We can help determine whether mediation is right for your situation, or at least get you pointed in the right direction.

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 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.


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