Virginia Divorce Law: The Improper Use of Protective Orders

One of the more nefarious strategies that people use during a divorce proceeding is reporting you to the magistrate and asking for a “protective order.” These protective orders can have serious consequences for your employment and the success of your divorce case. It is important to know what a protective order is, why they are granted, how to combat them and what to do if you were the subject of a bad protective order.

Virginia Law: What is a Protective Order?

A protective order is a document that says you are not allowed to have contact with a certain individual. A protective order can also include provisions for temporary custody and visitation of children. If you are not careful, a protective order can even require you to pay for certain things like phone bills and housing.

These protective orders are normally granted on an emergency or temporary basis. A hearing must be held within a certain period of time to give you an opportunity to fight a protective order.

When Should You Get a Protective Order?

A protective order is designed to protect people from immediate threats or danger of harm. They are supposed to be used to protect a spouse from a physically abusive or dangerous person. For example, if someone threatens to take another person’s life, that would be a good reason to have a protective order. If a former spouse is stalking you, that is also a good reason to have a protective order.

It is not, however, a good enough reason to seek a protective order just because someone does not “feel safe” without an immediate threat. They are also not supposed to be used to obtain temporary custody without fear of danger.

How Do You Fight a Protective Order?

Combating a protective order can be tricky. While protective orders are not criminal cases, they are often accompanied by criminal charges. You certainly have a right to appear in court and fight a protective order. However, if you have been charged with a crime such as domestic abuse, then it may not be a good idea to appear in court without a lawyer. The best way of fighting a protective order is to keep clear records of what happened.

Can You Get in Trouble for Filing a Bad Protective Order?

Yes, absolutely. The other side can seek their legal fees if you used a protective order for your own personal gain but did not actually fear for your own safety.

Why You Need a Divorce Lawyer.

You should hire a divorce lawyer if you are going through a difficult separation or are facing a protective order proceeding. Protective orders can hurt your employment and have impacts on the outcome of your divorce case. It is also important to have a lawyer if you want to seek a protective order to make sure you are doing the right thing and do not have to pay the other side their legal fees.

Virginia Divorce Law: How to Handle Government Retirement Accounts

If you work for the federal or state government, your divorce is going to be more complicated. As discussed in another blog, every asset from the marriage gets divided in a divorce. This includes retirement accounts.

Government workers have special kinds of retirement accounts. Federal workers may be FERS or TSP eligible. State workers may have a VRS plan. Either way, it is important to know that these plans are more complicated to divide.

So what makes these plans more complicated, and how are they treated in a divorce?

Types of Plans: Defined-Benefit AND

Defined-Contribution

There are several major types of retirement plans. Each type of plan is treated differently. Two of the major types of plans are defined benefit plans and defined contribution plans. For more information on the pros and cons of each type of plan, you should consult with a Certified Financial Planner or another type of financial advisor to understand what kinds of plans will work best for you in retirement.

In the divorce context, a defined contribution plan is essentially a deferral of wages. You may make contributions to the plan over an extended period of time through your wages. Your wages get placed in an account and gain interest over time. Upon retirement age, you are then eligible to start receiving the benefit of that account. A TSP would be an example of a defined contribution plan.

A defined benefit plan is essentially a pension. Your employer will pay you a pension over a certain period of time based upon your time in service and the nature of your employment. A FERS would be an example of a defined benefit plan.

How Do Retirement Accounts Get Divided in a Divorce?

FERS and TSP accounts get divided differently in divorce cases. With respect to a TSP, the Court will simply divide the amount of contributions made between the date of marriage and the date of separation. The spouse, or in this context the Alternate Payee, will receive those benefits under a Qualified Domestic Relations Order.

In contrast, a FERS account does not get paid out the same was a TSP. You cannot roll over a lump sum payment from a FERS account. Your spouse will receive a portion of your monthly benefit. The typical method of calculating the amount of monthly benefit paid directly to your spouse is handled mostly by the plan administrator. The plan administrator takes the “present value” of the account and multiples it by a fraction. That fraction is essentially the amount of time you have worked for the government during the marriage as the numerator, over the total amount of time you have worked for the government expressed as a denominator.

Why You Need a Divorce Lawyer

The division of retirement accounts is one of the most complicated aspects of divorce cases. Improperly calculating benefits can lead to thousands of dollars of lost marital assets. Plan administrators are also very particular about the preparation of the Qualified Domestic Relations Orders. You need to hire a lawyer to make sure these retirement accounts are handled correctl

Virginia Divorce Law: Understanding Qualified Domestic Relations Orders

If you are getting a divorce and you have retirement accounts, you need to know about Qualified Domestic Relations Orders (“QDROs”). These documents are important because your retirement company may require these documents in order to divide your retirement accounts. Not all retirement accounts are covered, so it is important that you understand the basics. If you fail to handle the QDRO correctly, it can result in thousands of dollars of damages for your mistake.

So what is a QDRO, and why do you absolutely, positively need a lawyer for one?

What is a QDRO?

A QDRO is a document required by federal law to divide a retirement account. It is an additional piece of paper that is filed with the divorce court and signed by the judge. The document authorizes your plan administrator, the person responsible for your retirement account, to distribute funds.

What Types of Retirement Accounts Require a QDRO?

There are only certain types of “qualified plans” that require a QDRO. Other types of plans, such as government pensions, may require other types of documents such as an ADRO. A QDRO is specifically designed to address The most common types of plans that require a QDRO are 403(b) and 401(k) plans. IRAs are typically not divided through a QDRO. Government pensions are also not often divided by QDRO.

What Is The Process For Preparing a QDRO?

A QDRO is a highly technical document. It is a document that is relied upon by accountants to tell them exactly how to calculate your share of your spouse’s retirement accounts. As such, there are several specific provisions in the QDRO that may be unique to individual plans. A lawyer will typically obtain the template QDRO from your plan administrator and make substantial changes based upon what is ordered by the court or agreed by the parties for division of the retirement accounts. The template often does not cover exactly what you need.

Why You Absolutely, Positively Need a QDRO Lawyer.

There are a lot of pitfalls in preparing a QDRO. There are complicated concepts such as gains, loses, market performance, loan accounting, and valuation dates that can trip even lawyers up. If you are not careful about which options you select in a QDRO, it can snowball into a massive accounting mistake. Even checking one simple box wrong could lead you to be responsible for a massive deficit or even a large tax bill.

That is why it is important to do a QDRO right the first time. Under no circumstances should you ever attempt to handle a QDRO alone. Even when it comes to lawyers, you need to make sure your lawyer has handled QDROs before. Many divorce lawyers refer QDROs out because of how complex and dangerous they can be. If you have retirement accounts and are getting divorced, talk to a qualified lawyer.

Virginia Divorce Law: How to Change Your Name

One of the last things people think about when they are getting a divorce is changing their last name. Many people change their names, both men and women, to their spouse’s name or hyphenate their name when they get married. 

However, your name will not automatically change back to your unmarried name after a divorce. There are several steps you have to take in order to do that. So what those steps? Please keep in mind this article only addresses adult name changes. Changing a child’s name is much more difficult.

During What Stage of a Divorce Can You Change Your Name?

Technically, an adult can change their name at any time in Virginia. There are very few limitations on changing names. There is a specific procedure for changing a person’s name. This process does not automatically begin when you file for divorce. A name change request is a different piece of paper that you have to file with the Circuit Court. Typically speaking, it is normal to file a name change request after the divorce has been finalized. 

There are many reasons why it is important to wait until after the divorce has been finalized, but there is no requirement that you wait. Technically, it can be filed at any point.

How Do You Legally Change Your Name?

The name change process involves filing a Petition for Change of Name in the Circuit Court in the City or County in which you reside. For example, if you live in Manassas, Virginia, you would file your name change request in Prince William County Circuit Court. If you lived in Winchester, Virginia, you would file your name change request in the Winchester City Circuit Court. There is a filing fee of approximately $35.00 as of 2019.

The Supreme Court of Virginia maintains a blank petition that you can fill out without the help of a lawyer. However, there are several reasons why you may want to have a lawyer help with the process. 

Once you file the petition, it is typically processed within a week or two. There are some situations that may cause delay.

Do You Have To Do Anything Legally After Changing Your Name? Yes.

Just because the judge signs off on your name change petition does not mean that is the end of what you need to do. You must also correct your name in the records of federal and state governments as well as any third parties you may have a contract with. For example, you need to change your name with your credit card companies and your bank.

With respect to government agencies, you will need to change your name with the Social Security Administration, the Internal Revenue Service, the state Department of Revenue and several other government agencies. Failure to update your name may cause delays in services or other repercussions down the road. For a complete list of places to change your name, you should contact an attorney.

When Can a Name Change Be Denied?

Although name change requests for adults are routinely granted, there are some reasons why they can be denied. You are not allowed to seek a name change for fraudulent purposes. For example, you cannot change your name if your only goal is to dodge people you owe money to or to run from court obligations. There may be additional legal consequences if that is why you are trying to change your name.

Why You Need a Lawyer.

It is important to at least talk to a lawyer about changing your name legally. It is important to change your name properly and to notify the appropriate people to avoid any fines, fees or costs that may result from not notifying the appropriate people. If you are considering changing your name, talk to a local lawyer.

Virginia Divorce Law: The Problem with DIY Separation Agreements

If you have started the divorce process or are just now thinking about whether you want to begin, it is important to understand the dangers associated with a do-it-yourself (“DIY”) divorce. As I have written about in a separate article, the two major types of divorces are contested and uncontested divorces.

If you are pursuing an uncontested divorce, you will likely need a separation agreement. So what is a separation agreement, why do you need one, and what could go horribly wrong if you DIY?

What is a Divorce Separation Agreement?

This is a document that explains to the court what you and your spouse would like to do with everything that was acquired during the marriage and how you are handling custody and visitation of any children. To qualify for an uncontested divorce, you must fully resolve all these issues. 

You and your spouse will need to agree on how to handle things including, but not limited to, life insurance policies, health insurance, debt, bank accounts, stocks, bonds, vehicles, jewelry, retirement accounts, pets and real estate. You will also need to handle where the children will live and how often the other parent will get to see the children.

Why Do You Need a Divorce Separation Agreement?

If you do not have an agreement in place of some kind, then you must do a contested divorce. These can be terribly time consuming and expensive. You will be required to obey several rules and file the appropriate paperwork with the court or risk losing your case.

Without a separation agreement, you may also run into arguments on how to handle your property. You may have thought you had an agreement on who would handle a certain credit card bill, but without something in writing you risk a dispute. Therefore, it is important to have an agreement in writing.

What Could Go Wrong if you Don’t Hire a Lawyer to Draft the Separation Agreement?

I have seen too many people attempt to create a DIY Separation Agreement. Common examples of issues that go wrong include a) not identifying how retirement accounts will be divided, b) not identifying how real estate is going to be sold and c) not being clear enough in how custody and visitation schedules are going to work.

If you are not clear, you will have a lawsuit. These are complicated matters with plenty of potential loopholes that could get you trapped in court for years. It could hold up the sale of your property and cost you thousands of dollars. It is cheaper to hire an attorney to get it right the first time than try and hire a lawyer to fix the bad DIY job later.

Therefore, make sure you talk to an attorney if you are considering a divorce so you can get a separation agreement that meets your needs and protects you down the road.