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Questions Answered by James H. Wilson Jr.
2 Answers | Asked in Divorce for Virginia on
Q: My parents have been seperated for 40+ years. My father has become ill and I wanted to know how to get them divorced

My mother has not been around my entire life and claimed she has remarried but I dont know how if she still is married legally to my father. I just want them divorced in case my father passes I dont want her entitled to any of my father's assets

James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 20, 2022

If a married person marries another person not his or her spouse, the marriage is void as bigamous. This means the original marriage is still valid. Under Virginia Code Section 64.2-308, a spouse who willfully deserts and abandons his or her spouse loses all statutory rights. If you suspect his... Read more »

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1 Answer | Asked in Divorce for Virginia on
Q: If a minor child turns 18 at 8 months into the year-long separation period, can we file for divorce right then?

Assume asset/property division has been agreed upon. Just waiting for the year to be up.

James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 18, 2022

The separation period for a no fault divorce in Virginia is 1 year. If the parties have no minor children born or adopted of the marriage, and have signed a written separation agreement, the required separation period is only 6 months. The intention to separate permanently must exist continuously... Read more »

2 Answers | Asked in Divorce for Virginia on
Q: My husband inherited a house from his mother. He added my name to the deed. We are now going to get a divorce.

Do I have a claim to the house

James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 27, 2021

Property received by gift or inheritance during the marriage start as separate property. Separate property may be transmuted into marital property by certain actions that cause it to lose its character as separate property, such as the commingling of funds. Property may also be classified as... Read more »

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1 Answer | Asked in Family Law for Virginia on
Q: I am an international student in USA. I am going to marry second wife. Can this happend?
James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 22, 2021

It depends where it happens and where you reside. In general, under principles of comity, Virginia recognizes a marriage as valid if it was valid in the place where celebrated, unless it offends the strong public policy of the Commonwealth. In Virginia, a bigamous marriage is void. Bigamy is a... Read more »

2 Answers | Asked in Estate Planning for Virginia on
Q: My mother lives in Newport News VA. She wants to leave me her house that still has a mortgage. What is the best way
James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 17, 2021

I agree with my esteemed colleague and would add, in addition to a will or a trust, a Transfer on Death Deed as another way to accomplish this. The house may also pass by intestate succession if you are her sole heir at law, and only a real estate affidavit may be required after death to give... Read more »

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1 Answer | Asked in Family Law and Child Custody for Virginia on
Q: Can grandparents who have never had a relationship with their grandchild of a single parent get awarded visitation?

I cut off all contact with my toxic and mentally ill parents several years ago, but they have continued to stalk me. I am concerned about them possibly suing for visitation once they find out they have a grandchild.

What are the chances that the family court would force me to allow them to... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 13, 2021

In Virginia, grandparents have no custody and visitation rights by virtue of the familial relationship. Grandparents are among the class of interested persons who can ask for a custody or visitation determination, but will not obtain any rights against the wishes of a biological parent who has not... Read more »

1 Answer | Asked in Child Support, Divorce and Family Law for Virginia on
Q: Can child support be decided upon outside of court in VA?

My wife and I are getting a divorce in VA, we have 2 kids, and we are both very high income earners. This is amicable, there's no fighting or hostility. We have agreed to joint custody. We both would like to have an agreement to split all costs 50/50, verses a set amount of child support. We... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 19, 2021

Spouses can enter into enforceable written marital agreements in Virginia, also known as separation agreements, property settlement agreements, and agreements and stipulations when they address the incidents of separation and divorce. Ultimately, the parties cannot bind a judge by contract on the... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: regarding 20-91 (9), what constitutes living “separate and apart” without any cohabitation?

Can you live under same roof but different beds and/or different floors?

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 2, 2021

In Bchara v. Bchara, the Virginia Court of Appeals recognized that a husband and wife could live separate and apart under the same roof. A separation in Virginia requires that the couple is no longer cohabitating as husband and wife. Typically, one spouse leaves the marital residence to reside at... Read more »

1 Answer | Asked in Estate Planning and Probate for Virginia on
Q: After being married to and living with a man for 8 years we separated but did not get divorced. We had 2 boys.

We never lived together again. 10 years after we separated he had a heart attack, suffered brain damage, and had to be put in a home for 10 year. He recently passed away. All he has left is about $330K in his IRA. While incapacitated his mother created a will leaving all money to his sons and... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Oct 10, 2021

Property often transfers at death through nonprobate transfers, including survivorship on title, beneficiary designations on accounts, payable on death bank accounts (POD), and transfer on death investment accounts (TOD). Nevertheless, such transfers are still subject to legal requirements of... Read more »

1 Answer | Asked in Estate Planning and Tax Law for Virginia on
Q: What is the inheritance order in Virginia when there is no will?

My mother inherited two vacant lots when a friend passed away. They were sold recently in a tax sale. A lady from a Recovery company contacted me saying that they would get a third , I would get a third and my nephew's would get a third to split three ways from the tax sale. Now my mother... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Oct 8, 2021

If a Virginia resident dies intestate, without a will, the state essentially writes a will for that person - the law of intestate succession. Virginia's law of intestate succession appears in Chapter 2 of Title 64.2 of the Code of Virginia, specifically Sections 200 and 201 describe the... Read more »

1 Answer | Asked in Family Law and Child Custody for Virginia on
Q: Do I have to let my 2 year old and 3 year old go back to my husband and his girlfriend's home after she failed cps drug

Test. I have schedule an appointment to file for custody on October 7th. There is no custody agreement between is at this point.

James H. Wilson Jr.
James H. Wilson Jr. answered on Oct 1, 2021

In the absence of a court order or written agreement, both parents have equal rights to, and responsibilities for, their minor children. You question does not address how CPS became involved with your husband's girlfriend, why she was subject to testing, what drugs were involved, where the... Read more »

1 Answer | Asked in Family Law for Virginia on
Q: My ex is keeping my kids from visiting me. He has filed a notice to modify visitation with the law clerk.

Do I have to file something in response or wait for a court date?

James H. Wilson Jr.
James H. Wilson Jr. answered on Sep 30, 2021

Custody and visitation orders may be modified by filing a motion that alleges a material change in circumstances and how the best interests of the child[ren] would be served by modifying the referenced order. It is possible that either the Circuit Court or Juvenile and Domestic Relations Court can... Read more »

1 Answer | Asked in Child Custody and Family Law for Virginia on
Q: If I had a marital settlement agreement in Florida is it possible to have custody modified in Va

Ex filed registration in VA and immediately turned into modification of custody and JD&R proceeded without proper jurisdiction. Is that possible?

James H. Wilson Jr.
James H. Wilson Jr. answered on Sep 24, 2021

A party to a court order may domesticate or register that order in Virginia if the Virginia court can exercise jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act. Notice of the proposed domestication or registration is served on the other party so he or she could contest... Read more »

1 Answer | Asked in Criminal Law, Employment Law, Estate Planning and Personal Injury for Virginia on
Q: If a witness in a case has a criminal record, how does that impact their credibility if they are asked to testify?
James H. Wilson Jr.
James H. Wilson Jr. answered on Aug 31, 2021

A witness may be asked about felony convictions and misdemeanors involving moral turpitude - lying, cheating and stealing. These types of crimes reflect on the credibility of the witness.

1 Answer | Asked in Estate Planning for Virginia on
Q: I am the executor of my aunts will divided as follows- my father 35% Me 35% brother 1 15% brother 2 15%

Father passed a month after aunt did. So where does his portion go, his wife is still alive. And if it goes to 'him' does it go to my mother (his wife) or to my fathers estate?

James H. Wilson Jr.
James H. Wilson Jr. answered on Aug 11, 2021

If a Virginia resident dies intestate - without a will, his or her assets, including the present right to an inheritance, are part of his or her estate and would pass, if at all, according to the law of intestate succession, as administered by the personal representative of the estate - an... Read more »

1 Answer | Asked in Family Law for Virginia on
Q: I have 3 children give and under the age of 5, the father live over 1,000 miles away. Am I responsible for communication

Do I have to call him or does he need to call the kids since he left?

James H. Wilson Jr.
James H. Wilson Jr. answered on Jul 26, 2021

An important factor in custody and visitation disputes between fit parents is the propensity of each parent to allow the children to have a relationship with the other parent, in fact, ideally, to promote that relationship. Visitation is a privilege, not a responsibility. No one can make a parent... Read more »

2 Answers | Asked in Business Formation, Civil Litigation, Employment Law and Estate Planning for Virginia on
Q: What are the different ways an attorney finds out information about a case through discovery?
James H. Wilson Jr.
James H. Wilson Jr. answered on Jul 16, 2021

There are a number of different methods employed in pre-trial discovery. The most common methods are interrogatories, request for production of documents, requests for admissions, depositions, and subpoenas duces tecum. Interrogatories are written questions that must be answered, or objected to,... Read more »

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1 Answer | Asked in Divorce for Virginia on
Q: My wife wants to separate an take the kids 1100 miles away for a month and keeps demanding I agree to what she wants

What should I do ?

James H. Wilson Jr.
James H. Wilson Jr. answered on May 12, 2021

Unless there is a court order in place addressing custody, visitation and support, both parents have equal rights to, and responsibilities for, their minor children. After the parties have separated, a parent may file petitions for the determinations of child custody, visitation and child support... Read more »

2 Answers | Asked in Estate Planning for Virginia on
Q: I have a revocable trust naming my daughter as successor trustee. She is sole beneficiary. I recently discovered that

The sole trustee cannot be the sole beneficiary. Can my designated trustee also be the sole beneficiary?

James H. Wilson Jr.
James H. Wilson Jr. answered on May 4, 2021

This is question requires a complex answer that should be discussed thoroughly with an experienced Virginia estate planning attorney, with particular reference to Virginia Code Section 64.2-776, part of the Uniform Trust Code, dealing with the discretionary powers of a trustee. The short answer is... Read more »

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1 Answer | Asked in Estate Planning for Virginia on
Q: In Virginia, are sons of deceased sister valid heirs to her brother's estate-no will, no kids, no parents, and unmarried

My mom passed away a few months before my uncle, but we have been advised that my brother and I are valid heirs. I read about the 120 hour rule, but that does not seem to apply here, because my mom has living sons. He had three sisters, including my mom. One of the two living sisters is... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 30, 2021

The course of descents in Virginia is set forth in Virginia Code Section 64.2-200 as follows:

"1. To the surviving spouse of the decedent, unless the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving...
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