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Tag: divorce lawyer

A Virginia Beach Divorce Lawyer Discusses Separate Property, Marital Property, and Hybrid Property.

A Virginia Beach Divorce Lawyer discusses separate property, marital property, and hybrid property:

Section 20-107.3 of the Code of Virginia, 1950, as amended defines “separate property,” “marital property” and “part marital and part separate property. As the Code notes, “separate property” is defined as (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) any part of marital property which may be declared separate property pursuant to court order. Furthermore, income received from separate property during the marriage is separate property if not attributable to the personal effort of either party and the increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increase and then only to the extent of the increases in value attributed to such contributions. Additionally, the personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributed thereto is to be considered marital property.

“Marital property” is defined as (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise; (ii) that part of any property classified as marital pursuant to court order or (iii) all other property acquired by each party during the marriage which is not separate property as set forth above.

Hybrid property is property that is part separate and part marital. The hybrid property can evolve from separate property due to the personal efforts of the parties.

What Are the Steps that a Norfolk Divorce Lawyer Takes in a Divorce Action?

A Norfolk divorce lawyer begins a divorce action by filing a Complaint for divorce in the Circuit Court. At least one party must be a bona fide resident and domiciliary of Virginia for six months preceding the commencement of the suit.

The venue or location of the Circuit Court for the divorce action is generally based upon preferred or permissible jurisdiction.

Permissible jurisdiction is in any Circuit Court in the Commonwealth of Virginia.

Preferred jurisdiction is where the parties last cohabited as husband and wife; at the option of the plaintiff, where the spouse resides; or if the spouse’s whereabouts are unknown or if the spouse resides out of state, where the plaintiff resides.

The defendant will generally file an Answer and/or Counterclaim.

In the Answer, the defendant will admit or deny the allegations in the plaintiff’s Answer.

 In the Counterclaim, the defendant may allege his or her facts for a divorce action.  If a Counterclaim is filed, the plaintiff will file an Answer to the Counterclaim, where he or she admits or denies the allegations in the Counterclaim.

To have jurisdiction over the defendant in a bilateral divorce and the ability to resolve certain issues ancillary to the divorce (e.g. support or equitable distribution), the court must determine if personal jurisdiction over the defendant exists.  To obtain personal jurisdiction over the defendant, both the plaintiff and the defendant must have a physical presence before the forum court; the defendant must make a general appearance before the court through counsel; or have personal jurisdiction over the defendant by Virginia’s long arm statute.

The Virginia long arm statute is § 8.01-328.1 of the Code of Virginia, 1950, as amended.  The statute delineates when personal jurisdiction over a person may be exercised:

A.  A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s:

1.  Transacting any business in this Commonwealth;

2.  Contracting to supply services or things in this Commonwealth;

3.  Causing tortious (wrongful) injury by an act or omission in this Commonwealth;

4.  Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;

5.  Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when he might reasonably have expected such person to use, consume, or be affected by the goods in this Commonwealth, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth;

6.  Having an interest in, using, or possessing real property in this Commonwealth;

7.  Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting;

8.  Having (i) executed an agreement in this Commonwealth which obligates the person to pay spousal support or child support to a domiciliary of this Commonwealth, or to a person who has satisfied the residency requirements in suits for annulments or divorce for members of the armed forces or foreign service officers of the United States pursuant to § 20-97 provided proof of service of process on a nonresident party is made by a law-enforcement officer or other person authorized to serve process in the jurisdiction where the nonresident party is located, (ii) been ordered to pay spousal support or child support pursuant to an order entered by any court of competent jurisdiction in this Commonwealth having in personal jurisdiction over such person, or (iii) shown by personal conduct in this Commonwealth, as alleged by affidavit, that the person conceived or fathered a child in this Commonwealth;

9.  Having maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which grounds for divorce or separate maintenance is based, or at the time a cause of action arose for divorce or separate maintenance or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein; or

10.  Having incurred a liability for taxes, fines, penalties, interest, or other charges to any political subdivision of the Commonwealth.

Jurisdiction in subdivision 9 is valid only upon proof of service of process pursuant to § 8.01-296 on the nonresident party by a person authorized under the provisions of § 8.01-320. Jurisdiction under subdivision 8 (iii) of this subsection is valid only upon proof of personal service on a nonresident pursuant to § 8.01-320.

B.  Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth. For purposes of this subsection, “use” and “computer network” shall have the same meanings as those contained in § 18.2-152.2.

C.  When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him; however, nothing contained in this chapter shall limit, restrict or otherwise affect the jurisdiction of any court of this Commonwealth over foreign corporations which are subject to service of process pursuant to the provisions of any other statute.

After the divorce action is filed, counsel for the parties will generally engage in discovery.  Discovery might include propounding interrogatories, questions to be answered under oath; request for admissions; and depositions.

After the discovery is completed, counsel will generally set the matter for a hearing.  However, counsel will want to insure that the statutory time period has been satisfied for a divorce a vinculo matrimonii, or final divorce. If only a divorce from bed and board is obtained, the parties shall remain separated and have their persons and property protected.  But, neither party may remarry under a divorce from bed and board.

At the conclusion of the divorce hearing and if proper, the court will enter a decree of divorce.  The decree of divorce a vinculo matrimonii terminates the marriage and either party will be free to remarry.  However, counsel should advise their clients not to remarry until after 30 days have lapsed and no appeal or other pleading is filed.

Whether you are in Newport News, Virginia Beach, Norfolk or any other city in the Hampton Roads region, call the divorce lawyers of  Montagna Klein Camden to discuss your case. We can help you during this is a confusing and difficult time.

Finding a Hampton Roads Divorce Lawyer: 5 Qualities to Look For

Divorce is the second most stressful life event (behind the death of a spouse), and for good reason. It involves an upheaval of the needs and feelings of not just the warring spouses, but also of any children involved. That’s why it’s so important that you hire a competent, calm and experienced family law and divorce lawyer to handle the proceedings. Don’t be afraid to “shop around” for an attorney with all five of the following qualities.

A divorce attorney should be…

  1. Part of a well-established practice with a positive track record. While there is a certain amount of confidentiality that goes along with divorce legal proceedings, you’re bound to come across referrals from friends who have gone through a similar experience. Those referrals may help separate the reputable lawyers from the ones with fewer cases under their belts. Online reviews are also useful.
  2. Punctual and responsive. Your attorney should not be so overloaded with clients that he or she doesn’t have time to respond to your requests and inquiries in a timely manner. 
  3. Enough of a “bulldog” to champion your interests, but calm enough to command respect. What kind of reputation does a prospective divorce attorney have within the legal community? Does he or she have a habit of reacting based on emotion instead of acting based on facts and the client’s best interests? The answers to those questions can often determine whether or not you get the ruling you deserve.
  4. Empathetic and understanding. Again, divorce is stressful and quite emotional. It’s critical that you hire a lawyer who can encourage you and be your advocate without getting drawn into the emotional frenzy themselves (see number 3).
  5. Surrounded with competent staff. If your divorce lawyer is anyone to speak of, he or she will have other clients who need attention just like you do. That’s why it’s best to hire a lawyer with a highly knowledgeable legal support team to answer your questions and address your needs.

The family law and divorce lawyers at Montagna Klein Camden make it a point to model our firm around these five qualities. We recognize the importance of our clients’ unique needs, feelings and circumstances, and do our very best to provide caring, productive legal counsel to people in Hampton Roads, Virginia. Considering divorce? Call us toll free to schedule a free initial legal consultation at (877) 622-8100 or contact us online. An experienced divorce lawyer will contact you shortly.

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