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Relocation of Children in Virginia

  I want to move with my children to another state. What are my rights and obligations?   The relocation of children in custody cases can be very complex in Virginia. This issue can be very sensitive for members of the Armed Forces stationed in Virginia.   The steps that must be addressed by the court and each parent are as follows:   Does Virginia have jurisdiction to hear the case?   Virginia will have jurisdiction to determine custody of your children if no other state has ruled on the issue of custody, and the children have been in Virginia continuously for greater than 6 months. If you have been to court in another state for the same child or children and that state ordered custody, then the other state will probably continue to have jurisdiction to make custody decisions over your child or children. You will need to consult the law in that state to determine the requirements to relocate the child or children to another state.   If Virginia has previously issued an Order concerning custody of your child or children, and you want to move to another state, the first thing you must do is notify the other parent. You will also need to provide advance notice to the other parent of your intent to relocate, the amount of time in advance you need to notify them is no less than 30 days, and may be more. You will need to check your current court Order or agreement to be certain, and comply with its requirements.   When both parents agree to relocation   If both parties agree to the relocation, the court will not normally object to such an agreement. The only time the court may want to get involved is if Social Services, such as Child Protective Services, or some other agency expresses a concern about the relocation.  When the move is designed to only avoid the oversight of Social Services, the court can try and stop such relocation. This would be a very unusual situation.   If none of the negative items above applies to your situation, a new agreement or Order can be entered to modify the visitation for the child or children which will take into consideration the distance and travel needs, education, etc. for the children.   What happens if the non-custodial parent objects to the move   The most common relocation issue is when the parent who has primary custody of the child wants to move with the child or children away from the other parent. This case can be very difficult in Virginia. If the other parent objects to the move, the parent who is moving away needs to show the court that the move will provide an independent benefit to the child and will not interfere with the relationship the non-custodial parent enjoys with the child. This means that the reason for the move must be to give the child something that the child can’t or doesn’t receive here. For example, a special school to satisfy a special need the child has, or to offer cultural and other opportunities that do not exist here.   A relocation due to the parent getting a better job elsewhere may not satisfy this requirement, nor a move solely to be near other family members. These are common reasons given for people to move with children, but they are not necessarily good enough reasons to satisfy the law in Virginia.   Considering how the move affects the non-custodial parent   The second factor is how the visitation to the non-custodial parent is affected by the move. If the parent with visitation has an infrequent or non-existent relationship, the move will not affect them and is therefore more likely to occur. If the parent is either extremely active or has a shared custody relationship with the child, a long distance relocation may seriously impair their visitation. In this case, it is far more difficult to satisfy the law in Virginia to permit relocation, as the relationship with the non-custodial parent will be...

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Why and How does my soon to be ex-spouse get a portion of my military retirement?

The Former Spouses Protection Act provides that the ex-spouse of a service member is entitled to a portion of the military spouse’s retirement when he actually receives it. The portion the former spouse is entitled to is based on three primary factors.   Three Factors that Determine How Much Military Retirement a Spouse Will Get   The first factor is how many years the parties are married and together. The second factor is how many years the military spouse stays in the military. The third factor is the rank of the military spouse at retirement.   Can a Spouse Waive Their Right To Military Retirement?   In Virginia, your ex-spouse is entitled to the portion of the retirement unless the former spouse waives their right to that retirement. This issue creates a lot of problems due to another rule established by the military.   How Will My Spouse Get Paid Their Portion of My Military Retirement?   If your spouse is not married to you for greater than ten (10) years from the date of marriage until the entry of the Final Decree of Divorce, DFAS will not pay the former spouse her share of the retirement directly. It is therefore up to the military spouse to pay the former spouse from their retirement.   As can be seen from the above, everyone’s situation can be different. Given the magnitude of this asset, you need to know which option will work best for you. To discuss these issues give us a call or chat with us via the chat application on the...

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What benefits is a former spouse eligible to maintain when married to a member of the military?

Types of benefits available to a former military spouse   There are mainly four benefits available to a person formerly married to a military service member.   Medical Insurance Commissary and Exchange privileges Military Retirement Survivor Benefit Plan   How can I get these benefits?   These benefits are available to the former spouse of a service member based on how long you are married.   Medical insurance benefit   You are only eligible to receive any extension of health insurance benefits if you are married to a service member for a minimum of 1.5 years while they are on active duty. This is commonly referred to as the 20/20/15 rule.  The time you are married after retirement does not count. If you are married for more than 15 years, but less than 20 years, and have no other health insurance policy in place, you are entitled to one year of health insurance coverage from the date of the divorce.   It is important to note, the 15 year time runs from your date of marriage until the date of divorce. It is not based on your date of separation, only the time from the marriage until the date of the Final Decree of Divorce.   If you are married greater than 20 years to a service member, (commonly referred to as the 20/20/20 rule) you are entitled to medical insurance for your life as long as you do not have other health insurance in place.   Therefore, it can be important when divorcing to take the amount of time you are married while on active duty into consideration when having the Final Decree of Divorce entered. If you are very close to the above time thresholds, it may benefit both the soon to be former spouse and the military member to delay the entry of a Final Decree of Divorce to satisfy the non-military health insurance needs, particularly if the non-military spouse has health issues that might affect their ability to get insurance.   Commissary and Exchange privileges   Typically, only a spouse who qualifies under the 20/20/20 rule outlined above can maintain Commissary and Exchange privileges for themselves. There are no other exceptions for the non-military spouse. The non-military spouse must be married to the military service member for 20 or more years while the service member is on active duty to receive these benefits.   Therefore it is important to take into consideration the length of your marriage and the amount of time the service member has served in the military to determine if these benefits may be available to the non-military spouse.   The benefits above only apply to the non-military spouse, not any children born to a service member. Children are entitled to a different set of benefits, which are distinct from the non-military spouse.   Retiree benefits for former spouses   Retiree benefits for a former spouse have been discussed previously in an article on this website. Please refer to that article for a more complete discussion of the rules relating to those benefits.   If you have additional questions please contact me via phone, e-mail, or the chat feature on this...

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Child Custody Issues in Military Divorces

Being Active Duty in the military provides unique challenges for parents regarding child custody issues. Below are some of the major issues involving custody:   Types of Custody   In Virginia, there are two distinct issues of custody; legal custody for the child and physical custody of the minor child.   Legal Custody   Legal custody allows the parent to have input in major decisions affecting the child, such as schooling, religion, medical care, daycare providers, etc. It is presumed in Virginia that both parents will have legal custody of the child. This is referred to as joint legal custody. By having joint legal custody, both parties are supposed to discuss the major issues regarding the child with the goal of reaching an agreement on the above issues.   If the parties are not in agreement on an issue such as where the child should go to daycare, the issue can be heard by a judge, who will decide the issue for the benefit of the child. It is important that each party not be unreasonable in the discussion of these issues, as that may negatively impact the ruling of the judge. For example, if the child has been with the same day care provider for a long period of time, there needs to be an extremely good reason to change to a new provider if the one parent wants the child to remain there. Not liking the daycare provider would not be a good reason, but both parents moving and making it extremely inconvenient to continue to use that daycare provider might be.   Physical Custody   Physical custody is where the child will reside. There are four main types of physical custody for children.   Sole Physical Custody   Sole physical custody means the child lives exclusively in one home. The non-custodial parent may not have any visitation rights to the child. This places the parent who has sole custody as the one who has the maximum amount of rights for the physical custody of the child.   Primary Physical Custody   Primary physical custody differs from sole physical custody in that there is an assumption that the parent who is not the primary physical custodian has some physical custody rights to the child. Normally this would be used when a reasonable visitation schedule is in place for the non-primary custodial parent.   Shared Custody   If the child will spend at least 90 days each year with both parents, the parties will have shared physical custody. 90 days per year means that each party has the child for at least 25% of the time. This is common when both parents live very close to each other and can mutually accommodate the child’s schedule. This requires a lot of communication and effort by both parties to make sure the child’s needs are being met.   Split Custody   If the parents have more than one child and at least one child lives primarily with each parent, the custody of the children is split between the parties. This is not very common and usually only comes about when one of the parties and at least one of the children have issues being with each other. This will normally occur as children get older, and are able to have more input into where they feel it will be in their best interest to reside.   Which custody arrangement should Service Member’s choose?   Each situation is different, and many times the life and requirements of being in the Armed Forces can affect these decisions. Deployments, duty schedules, and training exercises can make it very difficult for people who serve in the military to have sole or primary physical custody while in a deployable status, such as when a sailor is on Sea Duty.  For these reasons, all of your options need to be fully explored. The availability of the parents to be with the children, and making sure that both parents have a meaningful relationship with their children is of utmost concern to the judges who decide custody cases....

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Divorce Can Be Brutal

Divorce can be brutal. Emotionally charged, confusing and contentious, splitting up a house and home can be one of the most painful things you go through. But divorce doesn’t have to be a war. In the hands of the right attorney, it can be much less difficult and lots less stressful. Located in Virginia Beach, VA, the Law Office of Timothy Wade Roof offers you honest answers to your questions about divorce, spousal support, child custody and child support. Your legal options and rights will be clearly explained to you in terms you can easily understand. Honesty is paramount to attorney Tim Roof, who will recommend the quickest way to get closure on one of the toughest chapters in your life without breaking your budget. Tim Roof is a dedicated professional committed to helping you find peaceful resolutions to controversial situations. He believes that divorce should result in a fair solution to the whole family, especially where children are involved. Tim recognizes that one of the most emotionally charged parts of separating from your spouse is the impact it will have on the kids. Coming to a just agreement that truly meets the needs of your children is a top priority at this Virginia Beach law firm. It’s easy to get caught up in the emotional turmoil around the end of a relationship. Sorrow, fear and anger can prevent you from thinking clearly and objectively. While being sensitive to the pain associated with divorce, Tim helps to provide clarity and to ensure that the necessary fundamentals don’t get lost in emotion. He will give you straight answers on the choices you have available and will help you to choose your best course of action within your financial means. Tim Roof can help you deal squarely with reality in the midst of the chaos of splitting up. He understands your worries about the fate of your family, as well as your finances. He also realizes the sense of urgency you have to end this chapter of your life quickly, helping you to expediently make fully-informed decisions. You and your issues are unique and Tim recognizes and respects your individuality. He sees you as a person and a concerned parent, not just as a client. If you’re looking for guidance through the divorce process, call Tim Roof for a free...

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