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Alexandria Family Law Blog

How do I talk to someone about a prenup?

Your decision to protect yourself and your partner from potential financial distress is laudable. The key to breaching the subject is often to focus on the fact that you are making a gesture toward strengthening your future. 

The first point that you should probably address is that even Virginia couples that stay together often from prenuptial agreements. This often serves as an important reference throughout the conversation, especially if your counterpart questions the necessity of such a document. 

Would a court consider my business marital property?

Children's futures, bank accounts and homes — there are many things that you would probably have to consider when going through a divorce in Virginia. Your interest in a business — yours or your spouse's — might be one of those considerations, under certain conditions. 

In short, a court would not necessarily decide that your business is marital property. There are several common factors that inform this decision in each situation. However, there is usually some gray area. Even if one of the scenarios outlined below seemed to conform to a real-world case with which you were acquainted, you would likely have to examine the details before coming up with a negotiation or litigation strategy.

International military couples: Japan

Many military families are composed of one natural-born American citizen and one foreign national, usually a naturalized citizen. This is not surprising considering the international nature of the services, but it does raise some unique concerns if a marriage begins to fall apart. Many times, it falls to service members and their spouses to decide on a forum — that is, the country in which they choose to pursue the divorce litigation. In terms of Virginia couples with at least one Japanese citizen, the most pertinent concern informing that decision would likely be child custody.

As anyone who has spent much time in Japan has likely realized, the legal environment in the country is much different than it is in the United States. While the laws themselves are similar in writing — some are, in fact, based on American regulations — default judgments tend to come more from an accepted status quo than a series of litigated precedents. This means that, more often than not, U.S. and Japanese courts would decide differently on the same custody issue, despite some similarity in the statutes. 

Unrealized income and child support: what you should know

The key factor in determining how much a person receives from an ex-spouse in child support is the gross income of the former spouse. However, some income may exist only on paper and has never actually been received. Some people in Virginia may wonder if this income, known as unrealized income, counts toward calculating child support payments.

The difference between unrealized and realized income, according to Chron, comes down to worth versus an actual transaction. Unrealized income is basically financial worth that has not been converted to cash. Real estate, for example, may be reported in terms of unrealized income since the property is worth money, but it is not actual income until the property has been sold. Similarly, stocks and paper securities are also reported in terms of unrealized income. Until they are sold for actual cash, these investments have not generated actual income.

The power of the law: prenuptial agreements

Marriage is, at least in part, a contract forming a partnership between two people. Virginia state law dictates most of the terms of this partnership, but couples also have the option to extend or modify the details in the form of a prenuptial agreement. However, this power is limited, and it is often advisable that future married people should approach these agreements with an eye for future validity. 

An article in Time dispels a prominent myth about prenups: that they are only for rich people. In fact, even young couples with no significant assets could benefit from drawing up a document that explains, in detail, each individual's financial responsibility should the partnership end in divorce. This is because the court might divide debt accrued during the marriage equally between the ex-spouses. Those wishing to avoid responsibility for another's student loan debt, for example, might wish to have a prenup. 

Parenting together: Sharing one home

After a divorce, many people live apart. Their children go back and forth between houses, never really settling into one place. This means that the kids have to have two of almost everything or else take their toys, clothing and other belongings back and forth between houses.

To avoid this, some families have started sharing the marital home and keeping their kids in the same place. How does it work? It's a simple idea for a unique type of custody, and it's one that might work in your case.

Is joint custody best for you and your kids?

If you and your spouse have begun divorce proceedings in Virginia, your post-divorce custody arrangement probably is one of your biggest mutual concerns. Each of you wants what is best for your kids, and neither of you likely believes that a weekend father or mother is in their best interests. Not surprisingly, the vast majority of judges, family law attorneys, child psychologists and divorced parents agree with you. For them, joint custody is far preferable for children and parents alike in all but abuse and/or neglect situations.

Gone are the days when a mother automatically gained sole custody of her children, especially the young ones. Today, more and more divorcing couples choose joint custody, and more and more judges heartily approve such a choice.

For active duty parents: worry-free citizenship process for kids

Military families face plenty of challenges as they navigate active duty, transitioning to global stations and back home again. It may seem easier to focus on the difficulties of constantly moving, but members of the military who have connections to Virginia may also recognize the benefits of international experience. 

Cross-cultural living broadens worldviews and offers fresh perspectives. Children who grow up in international environments often see the world through a lens that is unique to them, differing even from their parents who live in the same home. Labeled third-culture kids, these children sometimes feel conflicting loyalties between their parents' countries of origin and the country where they are residing. 

Dividing a military pension during a divorce

The process for divorce in Virginia is often different for military families than it is for civilians. One example regards the splitting up of military pensions. This process uses a different set of rules than the division of other retirement benefits. That set of rules is known as the Uniformed Services Former Spouse Protection Act.

In short, the USFSPA provides that a state court may distribute some of a military pension to an ex-spouse as part of a divorce agreement. There are, however, significant exceptions to this rule. 

Is Virginia a community property state?

If you and your spouse are considering a Virginia divorce, you likely are concerned with how all the property the two of you accumulated during your marriage will be divided between you. FindLaw explains that Virginia is not a community property state, but rather an equitable division state.

What this means is that if you and your spouse are not able to negotiate a property division agreement, the court will make that decision for you based on a number of factors including the following:

  • The earning capacity and liabilities that each of you have
  • Whether and the extent to which either or both of you can support yourself
  • Whether one of you pays alimony to a previous spouse
  • The length of your marriage
  • Your respective ages and health
  • Whether either or both of you will receive retirement benefits
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