Family Law Practice Areas and Legal Definitions

Divorce:
A court of law is the only way one can obtain a divorce decree, dissolution, legal separation, nullity or other form of terminating a marriage. Other than the termination of the marital estate, the court also has jurisdiction to resolve other issues that are intertwined in the existing marriage which include, but are not limited to: custody and visitation rights, division of property of the marital estate, spousal support, child support, restraining orders, etc.

Property and Debt Division:
Marital property attained during marriage, regardless of whose name it is under, can be divided. Marital property can include real estate (including a home bought in contemplation of marriage), pension plans, vehicles, bank accounts, income tax refunds and/or household furnishings. However, property that is inherited by one spouse is not considered marital property, i.e. a family business or estate. If you are contractually bound with your ex-spouse on a debt, the creditor can require the entire payment of that debt from your share of the community property even though the divorce decree assigns the debt to your ex-spouse. Depending on the terms of your divorce decree, you may be able to have certain support obligations under the divorce decree determined to be non-dischargeable by the bankruptcy court or in state court.

Prenuptial Agreements:
A prenuptial, or premarital agreement (often referred to as a "pre-nup") is a written contract created by two individuals who plan to be married. This agreement lists all individually owned property, such as homes and businesses, family assets, stocks and bonds, savings accounts as well as debts, and specifies what will and will not remain individually owned property after the legalization of marriage. Prenuptial agreements also specify whether spousal support will be paid in the event of a divorce, and the intentions regarding distribution of individually owned property upon death.

A factor that cannot be stipulated in a prenuptial agreement is child support. A couple cannot lawfully agree in a prenuptial agreement that either part will in no way be responsible for child support. Also, a few states do not allow prenuptial agreements to modify or eliminate the right of a spouse to receive court-ordered alimony at divorce, although a prenuptial agreement can facilitate in the degree of compensation.

Child Custody:
Custody is the charge and control of a child, including the right to make all major decisions such as education, religious upbringing, training, health and welfare. Custody usually refers to a combination of physical custody and legal custody. Many factors influence an award of custody and the way a case is presented in court can have a large impact on the result for you and your children. If you are awarded the children as a primary custodial parent, it has far reaching consequences both to you and to their well-being and development.

Child Support:
Child support is a periodic payment made to a custodial parent from a non-custodial parent to help compensate a child's living expenses, i.e. food, clothes, etc., and any other related debts. When one parent is awarded sole custody, as in the event of a divorce, the non-custodial parent is required to fulfill his or her child support obligation by making set payments, whereas the custodial parent meets his or her support obligation through the custody itself. When parents are awarded joint custody in a divorce, however, the support obligation is shared and is based on a ratio of each parent's income and the amount of time the child spends with each parent.

The obligation to support minor children cannot be waived by either parent and is a right enjoyed by the child, not the parent. Each state has guidelines that factor the amount of child support, such as the amount of time spent with the child, the income of both parents and the standard of living the child is accustomed to. ; The court may allow deductions for items such as catastrophic medical expenses and travel expenses for visitation.

Spousal Support (Alimony):
Alimony is temporary or permanent financial support paid from one separated spouse to the other, either in one lump sum or in installments. ; Alimony is designed to provide the lower-income spouse with money for living expenses over and above the money provided by child support.  Alimony differs from child support because it is at the discretion of the judge. Child support is usually determined by state-sanctioned guidelines.

There are several factors a judge considers when deciding whether to grant alimony. These differ from state to state, of course, but they usually involve things like the parties' relative ability to earn money, both now and in the future; their respective age and health; the length of the marriage; the kind of property involved, and the conduct of the parties. In general, about the only time a judge will award alimony in most states is where one spouse has been economically dependent on the other spouse for most of a lengthy marriage.

Adoption:
Adoption is the legal process by which a person becomes a lawful member of a family different from their birth family.  Once a final order of adoption has been ruled by a court of law, the adoptive parents gain the same rights and responsibilities as parents whose children are born to them; subsequently, an adopted child gains the same rights as birth children in regard to inheritance, child support and other legal matters.  In most U.S. jurisdictions, at the time the adoption is finalized, the adopted child's name is legally changed and the court orders the issuance of a new, amended birth certificate.

Paternity:
Paternity covers all the matters related to proving the parentage of a child or children. For married couples, paternity of a child is assumed to be the spouse, unless there is a court order or judgment stating otherwise. For unwed parents, paternity can be established by signing an Affidavit of Parentage or by filing a paternity action with the court.

Legally establishing paternity or determining that someone is not the parent of child can have a significant impact on divorce settlements, property division, child custody, child support and the ability to move out of state. Determinations of paternity can also have a significant impact on interstate conflict between unwed parents.

Probate: 
Probate is the legal process of transferring property following a person's death.  Although probate customs and laws have changed over time, the purpose has remained much the same: an individual formalizes his or her intentions as to the transfer of his or her property at the time of death (typically through a Will); his or her property is collected, certain debts are paid from the estate and the property is distributed accordingly.

Estates are categorized as probate or non-probate property.  Probate property is property that is transferred by the provisions of a Will.  Non-probate property is property that is either jointly held and passes by right of survivorship, is directed by beneficiary designation such as an IRA or a life insurance policy, or passes according to the terms of a trust.

Wills:
A Will is a written instrument containing directions on how the assets and property of the testator (individual creating the Will) shall be divided upon his or her death.  Wills can also contain instructions regarding the care of minor children, gifts to charity and formation of posthumous trusts.  In order for a Will to be legally valid, the testator must sign the Will in the presence of two witnesses and he or she must be mentally competent and not acting under duress or under the controlling influence of another.

Estate Planning:
Good estate planning is more than just a simple Will.  It minimizes potential taxes and fees (including Federal and State gift and estate taxes), and sets up contingency planning to make sure wishes regarding health care treatment are followed before and after death.  A good estate plan also coordinates what happens to a home, investments, business, life insurance, employee benefits (such as a 401K plan) and other property in the event of disability or death.

Trusts:
Trusts are estate-planning tools that can replace or supplement Wills and can also help manage property during life.  A trust manages the distribution of a person's property by transferring its benefits and obligations to different people.  Maintaining assets in a Trust often makes it easier to minimize taxes and leave a larger inheritance.  A Trust is also a way to provide a steady income to the Beneficiary over time (as opposed to distribution in a lump sum), thus reducing the Beneficiary's tax burden, allowing the Trust to grow through investment, and keeping assets free from creditors of the Trust beneficiary.  Trusts can also be established for the benefit of charitable organizations.

Powers of Attorney:
Powers of Attorney are governed by the law of agency, a branch of common law concerned with the delegation of power from one person (the principal) to another (attorney-in-fact or agent).  When a person becomes incapacitated, the government or the court often steps in and appoints someone to represent and make legal decisions for the incapacitated person.  One of the ways to avoid government or court intervention and the appointment of a stranger to act as your guardian, is to use a Power of Attorney.  A Power of Attorney is a written document that can be limited in scope, or it can allow one person to give another the full power and authority to represent him or her.  There are two types of Power of Attorneys; one covering assets and one covering health care decisions.

Conservatorship:
A conservatorship is a court order that a person deemed fully or partially incapable be subject to the legal control of another person.  The conservator is responsible for the assets and finances of an incapacitated person.  Many jurisdictions use the term "guardian of the person" to refer to the same legal principle.  It may be necessary to petition a court to appoint a conservator for persons:

• Who have physical or mental problems that prevent them from managing their own financial affairs;
• Who have no person already legally authorized to assume responsibility for them; and
• Where other kinds of assistance with financial management will not adequately protect them. 

Guardianship:
A guardianship is a legal relationship created by a court between a guardian and his ward, either a minor child or an incapacitated adult.  The guardian has a legal right and duty to care for the ward.  This may involve making personal decisions on his or her behalf, managing property or both.  Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity or disability.

Courts generally have the power to appoint a guardian for an individual in need of special protection.  There are different types of guardians that can be appointed.  A guardian with responsibility for both the personal well-being and the financial interests of the ward is a general guardian.  A person may also be appointed as a special guardian, having limited powers over the interests of the ward.  A guardian appointed to represent the interests of a person with respect to a single action in litigation is a guardian ad litem.

If you or someone you know needs family law or estate planning guidance, call experienced Midlothian Virginia Family Lawyer John Randolph Smith today at 866-812-2659, or complete the contact form provided on this site to schedule your initial consultation.  John Randolph Smith's offices are located near Chesterfield Towne Center, fax number (804)794-5475.

• Divorce and Family Law
• Business and Corporate Law
• Commercial and Residential Real Estate
• Civil Litigation
• Wills and Estates
• Personal Injury
• Bankruptcy

• Virginia Polytechnic Institute and State University, Blacksburg, Virginia (1970), B.S. Degree
• Marshall-Wythe School of Law, College of William and Mary, Williamsburg, Virginia (1976), J.D. Degree

• Virginia: All Courts
• U.S. Bankruptcy Court, Eastern District of Virginia
• U.S. District Court, Eastern District of Virginia

• Virginia State Bar
• Chesterfield County Bar Association