It’s That Time of Year…

For cookie-baking, sleigh riding, fa-la-la-ing fun.  But for the newly-divorced or separated parent, it can also be a time of schedule stretching, angry texting, and court order defying stress.

It doesn’t have to be that way, but all too often, it is.  And because this time of year is also fraught with judge’s vacations and early court closings, unless you have a true custody emergency (and sometimes not even then), you’re not likely to get much judicial help with your situation until well after the new year.

But almost always, there’s a lot you can do to make the situation better.  Some quick ideas to help put a little joy back into the world —for you and your kids:

1.  Give a little…or a lot. You may have a court order that says the kids need to be back at 8:00 p.m., and your ex has rolled up with them at 9:15.  Again.  This is maddening, and no, it’s not ok.  But Christmas Eve is probably not the time to finally resolve this issue face-to-face with your ex, with the kids standing behind you in their reindeer jammies.  So let it go…for now.

There’ll be time to address it later, in the light of a new year.  Of course, if you have a legitimate concern for your kids’ immediate safety, call the police.  Then your lawyer.  If in doubt about what to give on, ask your attorney, who will likely give you the following advice…

2.  Document, document, document. Just because you’re not canceling Christmas over your ex’s behavior doesn’t mean you’re turning a blind eye  forever.  Always document significant issues concerning your children.  Keep records of court violations and conflicts with your ex, so you can make a plan with your attorney on how to deal with them in the new year.  Communicate rationally with your ex via email, so your lack of consent on issues is documented.  And always compose every voice mail, text and email message as if a judge will eventually read it.

3.  Reign in the relatives. I’ll keep this one brief:  if you can’t call your ex a moron/tramp/deadbeat in front of your kids, neither can Aunt Thelma.  If you  expose your kids to people who bad mouth your ex, you’ll ultimately be held responsible for it.  By the court first.  And eventually, probably by your kids.

The above suggestions require patience and a little self-sacrifice, but can go a long way to creating a more peaceful holiday for your kids.  Note that missing from the list is “Eggnog as Coping Strategy.”  Which would bring more than one kind of headache come January 2^nd.

To speak with an attorney about the above or any other legal matter, please call us at 703-777-5700 or click here to
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First and most important, do not ever record a telephone call that neither party to the phone call realizes is being recorded.  If you do, you are violating both the Virginia and federal wire-tapping statutes.  Therefore, if you tape the phone call between your spouse and that other person in his or her life, it could be you who is going to jail.

Virginia does, however, permit you to tape a conversation in which you are a party to the phone call.  There is nothing illegal about that.  But, recognize in advance that its usefulness may not be everything that you hope it is.  The Virginia General Assembly has decided that such ‘one party’ recordings cannot be introduced at trial in any divorce or custody proceedings.  There are a few exceptions to this general rule, but none you should assume will be applicable to your situation.

So, in short, do not ever record a phone call in which neither party knows they are being recorded.  And, in Virginia, if you choose to record one in which you are the only party that knows it’s being recorded, recognize that the evidence of the recording may have far less benefit in any custody or divorce matter than you think it should.

1.  Procrastination.  Look, we’re all human.  No one wants to spend their weekend digging through tax records or spending 20 minutes on the phone with  customer service requesting credit card statements.  But it’s pay me now or pay me later.  I can promise you that if your discovery is due the 20th and you wait until 4 p.m. on the 19th to send in half-finished answers, it will cost you much more (hundreds of dollars per hour more, in fact) for me to try to pull it all together for you.  And I’ll still make you dig through those records and make those phone calls, because I want to make the best use of your resources.  Almost always, you’ll have better uses for your money than paying me to do something you can do yourself.

2. Passing the Buck. I can’t tell you how many times clients send in the following as discovery responses: “My attorney can answer this for me” or “My lawyer has some of these documents.”  Please don’t ask us to answer your discovery for you.  Not only is it expensive, we might miss something important, that only you can answer.  Also, if you’ve already provided documents to us that are responsive to discovery, list out exactly what the document is, and when you provided it to us.   If in doubt, send it to us again.

3. Discovery as Revenge. While this may techincally be the appropriate place to air your dirty laundry, try to use a little restraint. Don’t catalog every slight that’s taken place in the relationship, and avoid resorting to insults.  As harsh as this might sound, in answering discovery, what’s most relevant  is what’s actually happened, not how you feel about it.

So that’s our list.  There are others, but these are our top 3.   Avoding these common mistakes will save you on fees, prevent last-minute crises and most importantly, give you the best shot at  successfully settling or trying your case.

1. Interrogatories.  These are questions you answer under oath, in writing.  This is the other side’s attempt to get as much information about your case as possible, in your own words.
2. Depositions.  These are also questions you answer under oath, but by giving testimony.  Depositions usually take place in an office, with the parties, their counsel, and a court reporter present.  Kind of a dress rehearsal for trial, depositions typically have a less formal feel than testimony taken at trial.  But the answers count—so if anything you say at deposition varies from what you say later, expect it to become an issue at trial.
3. Request for Production of Documents.  This is when the other side asks you to produce paper or electronic documents such as tax returns, cancelled checks, emails, and even photos.  If you have the documents in your possession, custody or control (in another’s possession, such as a bank, but you have access to them), then you must produce them.
4. Requests for Admission (RFA’s).  Pay attention here, as a lot rides on these.  RFA’s are statements that you must admit or deny in writing, usually within 21-days of when they were issued (occasionally, the deadline is longer under certain circumstances–check with your lawyer to be sure). RFA’s are  meant to force you into admitting a fact that will hurt your case at trial.  You might think, then, that the way to go is just to deny everything or be as evasive as possible in your answer.  But if you deny something you shouldn’t have and the court sees it that way, the court can disregard your denial and  force you to pay the other side’s attorney’s fees.  In other words, this isn’t the time to get cute with your answer.

Also, be aware that if you don’t answer RFA’s by the deadline, they’re deemed admitted, which means that they’re ”conclusively   established” against you.  Yes, that’s as bad as it sounds.  So if your RFA alleges you’ve committed adultery, and you fail to answer it within 21 days, the fact of that adultery is now conclusively established against you. Of course, there is some hope if you’ve blown your deadline:  you can always ask for the court “un-admit” everything and let you answer late.  But with so much at stake, you really don’t want to be in this position if you can help it.

So now that you know what discovery is, you need to know how to answer it.  In the next post, we’ll share some strategies for responding to your Virginia discovery, and ways to make the process a little less painful.

Many of us haven’t laid eyes on these forms in years–not since we enrolled in our 401(k), opened our bank account, or took out that life insurance policy.  And many of us wrongly assume that when we finally update our will, it covers those assets.  But that’s a critical mistake that can cost your intended beneficiaries and upend your estate plan.

Because assets like life insurance proceeds, retirement accounts, annuities, and other POD accounts pass outside of your will, bypassing  the probate process.  At your death, these “non-probate assets” are distributed to the people you identify on your beneficiary designation form, not by the terms of  your will.

Which means that if you update your will or experience a major life change, like marriage or having kids, without changing your beneficiary on these forms, the wrong person can end up with your money.   Sometimes state or federal law tries to right these wrongs, with  laws which protect a spouses’s right to receive the proceeds of qualified retirement or IRA accounts, or laws that terminate a former spouse’s right to receive assets after a divorce.

But most of the time, it’s up to you to get it right.  And while filling out the forms can only take a few minutes, a good amount of thought needs to go into it.  There can be negative legal consequences to naming certain beneficiaries, such as minor children.  And though you can get non- probate assets into your will (typically, by designating your estate as your beneficiary) there are many times when that’s not the best first choice, such as when a spouse will need ready access to cash.   So speak with an attorney about your situation before you update your will and beneficiary designation forms, so you can be sure you’ve connected all the dots.

Regardless of the “whys” behind the numbers, one thing is clear:  single people have unique legal needs.  When an unmarried person becomes incapacitated or dies, there’s often no obvious go-to person, such as a spouse, to take the reigns of their affairs.  As a result, it’s crucial for single people to protet themselves and their assets, using some or all of the following:

1.  Will. Okay, so this one should be obvious.  But you’d be surprised how many single people–especially young singles–put this off, thinking it’s only for people with kids or significant assets.  But unless you’re fine with the Virginia Code determining  who receives your money and property, a will is a must-have.

2. Durable Power of Attorney (POA). This document designates a person (called an “agent”) of your choice to manage your financial affairs. A  POA can cover long-term situations such as a chronic or terminal illness, or much less serious situations, like a temporary illness or injury.  POA’s in Virginia are fully customizable to give your agent as much–or as little–power as you want.

3.  Living Will.  Most people know what a living will is, but again, many put off making one.   Simply put, a living will directs your health care providers to withold medical care if such care would only prolong the dying process.  Without a living will, you may be leaving crucial decisions to family members who are unaware of, or do not respect, your wishes.

4.  Medical POA/Advance Medical Directive. Like a durable POA, a Medical POA names an agent to make health care decisions for you when you can’t make them yourself.  It’s important to clearly authorize someone you trust to act on your behalf,  especially if you anticipate family members or significant others to clash over your care.

5.  HIPPA Waiver/Authorization.  This one’s a little less obvious.  Most of us know it only as the nuisance form we sign  at the doctor’s office.  This document authorizes your health care provider to release information to the people you choose.  For single people, this form is necessary if you want a significant other or friend to be able to discuss your care with a doctor.  Rather than signing waivers piecemeal, for each doctor, you can sign a blanket waiver that can be presented to all providers.

The above list isn’t exhaustive, and based on your situation, different documents may better protect you.  The only way to be sure you’ve got your bases covered is to consult with a licensed Virginia attorney.