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Questions Answered by James H. Wilson Jr.
1 Answer | Asked in Divorce for Virginia on
Q: Do you follow the laws of divorce for the state you file in, regardless of where you were married at?
James H. Wilson Jr.
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James H. Wilson Jr.
answered on Feb 6, 2023

Depending on the circumstances, a divorce is typically filed in either the state where the defendant resides, or the state where the plaintiff (filer) resides. The place of marriage is irrelevant.

Due process requires notice and an opportunity to be heard. Further, if property rights,...
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1 Answer | Asked in Child Custody and Family Law for Virginia on
Q: We share joint legal and physical custody and have “visitation as agreed upon by both parties”, how is that enforced?

My 15 year old no longer wants to visit every other week related to various changes at the home and her feeling like she’s never heard. What’s my best next move?

Can a show cause be enforced against me since there is no concrete schedule in place?

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Feb 6, 2023

That reads just like the kind of agreement reached in mediation - it is vague enough that both parties can interpret it to their own satisfaction. Unfortunately, there is not much that can be done to enforce it. Far better is to have a fixed schedule from which the parties can deviate if they so... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: how do I get a divorce based on adultery
James H. Wilson Jr.
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James H. Wilson Jr.
answered on Jan 17, 2023

A divorce is initiated by the filing of a Complaint in the appropriate Virginia Circuit Court. A divorce based on fault must include the basic elements of the fault ground that the Plaintiff will rely on, in numbered paragraphs in the Complaint. A party or counsel signing a pleading, such as a... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: Do both parties have to sign a seperation agreement before the seperation begins?
James H. Wilson Jr.
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James H. Wilson Jr.
answered on Jan 12, 2023

Spouses can enter into enforceable separation agreements in Virginia. The agreement must be in writing and signed by both spouses, or recited in front of a court reporter. A separation agreement is not a requirement for a divorce in Virginia, although it allows a no fault divorce based on a six... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: Divorce when in separate states

If my spouse files for divorce in Virginia but I am about to move to another state, am I able to handle my part in the divorce from that other state. Would I hire a lawyer in Virginia? Would I have to physically appear in court or could my lawyer appear for me? What happens if I cannot afford to... Read more »

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Dec 24, 2022

Divorces easily fall into one of two categories: contested and uncontested. An uncontested divorce typically proceeds as a no fault divorce based on a signed written separation agreement between the spouses. All the incidents and consequences of the marriage have been addressed: spousal support;... Read more »

2 Answers | Asked in Bankruptcy, Consumer Law, Contracts and Collections for Virginia on
Q: Is there a statute of limitations on credit card debt?

I was contacted by a law group saying I owed on an old credit card debt. They're saying the last time they tried to contact me was 2016 from a card I obtained before 2010. It was a JCPenny store card. They're threatening garnishment. I paid off all my debts before I purchased my home in... Read more »

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Dec 9, 2022

Credit card lawsuits typically involve two different jurisdictions - the issuer's home state and the borrower's home state, and the shorter of the two may apply in Virginia. In Virginia Code Section 8.01- 232, there are three conditions on the enforceability of a waiver of the right to... Read more »

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1 Answer | Asked in Family Law and Child Custody for Virginia on
Q: If my teen decided she no longer wants to go to her father's, do I have to make her?

I have sole custody and her father has a visitation order. She is 14 and we live in the state of Virginia.

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 22, 2022

Unjustifiably withholding visitation can result in a change of primary physical custody of a child. A custodial parent must do everything within his or her power and authority to allow visitation to occur, absent some credible evidence of family abuse which would justify a modification of a... Read more »

2 Answers | Asked in Estate Planning for Virginia on
Q: We have existing will and trust. Can we modify current successor trustee with an addendum we create and notarize?
James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 21, 2022

A will may be modfied with a codicil. Most attorney advise against the use of a codicil for various reasons. As it requires the same formalities as a will, the testator is often better off by simply writing a new will.

A trust may be modified in accordance with its terms, or, in certain...
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1 Answer | Asked in Family Law and Child Support for Virginia on
Q: Can Virginia make you pay child support for a child over 18 if they have disability?

My fiancees son never received disability as a child and applied on his own and got it and is his own guardian and moved out of his mother's house and they still want him to pay her child support.

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

Under Virginia Code Section 16.1-278.15, child support may be ordered to continue for an adult child in the following circumstances:

"...The court may also order that support be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or...
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2 Answers | Asked in Divorce and Family Law for Virginia on
Q: In VA, 12 mnths of separation is req'd w/ minors before divorce. Do I need notarized separation agreement to prove date?

I know in VA, a legal separation agreement is not always (or ever?) necessary. But we are separating under the same roof which I realize complicates things. We started this beginning of August, and have done everything on the "separation list" that we found in our research (separate... Read more »

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 17, 2022

While the Virginia Court of Appeals has decided that it is possible for spouses to live separate and apart under the same roof, not all Circuit Court judges readily accept that idea. The idea is more popular in certain areas of the state, such as Northern Virginia, where the costs of housing is... Read more »

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2 Answers | Asked in Bankruptcy for Virginia on
Q: Can my auto loan be placed as a charge off while in Chapter 13 by the creditors?

Voluntary dismissal after 2+ years in plan. Tried to restablish payment plan for auto loan. They claim I fell further behind after I filed because they didn't receive timely plan payments from the trustee and charged it off. Now they are threatening repossession and say I am 9 months more... Read more »

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 14, 2022

An important issue in chapter 13 cases is whether to pay the vehicle loan directly outside the plan as a long-term debt, or in the plan by the trustee as a secured claim. The downside of putting it in the plan is an early dismissal produces an immediate default. Unless you are cramming down the... Read more »

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1 Answer | Asked in Family Law for Virginia on
Q: How can my mother gain emergency guardianship of my son without my consent?

I reside in Virginia which my son was born. My mother has been watching over him for me while I work to get my house together. She goes & files for emergency guardianship which she claims was granted in Delaware without my knowledge or consent

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 14, 2022

The jurisdiction over, or power to decide, interstate custody and visitation disputes is based on the Uniform Child Custody Jurisdiction Enforcement Act, UCCJEA, a uniform law adopted in almost all the states. The purpose of the UCCJEA is to require a connection between the residence of the child... Read more »

1 Answer | Asked in Divorce and Family Law for Virginia on
Q: My husband lied to the cops to get a epo granting possession of the home. If I get an order on him, who gets to stay?

I have real evidence that I can take to the magistrate and get him arrested for assault. If I was granted a EPO also and possession of the home, which h one of us gets to stay there? Is it the one who was granted it first?

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 11, 2022

A protective order may be issued in three successive steps, each with greater due process protections for the accused. To protect against an immediate harm, a emergency protective order can be issued ex parte by the magistrate or general district court judge on a sworn statement or affidavit,... Read more »

1 Answer | Asked in Divorce and Family Law for Virginia on
Q: My husband has an ego on me and has been granted temporary possession of the home. Can I get possession back?

My husband called the police on me and lied and said I covered his mouth and nose and slammed his head into the wall.

He was granted a epo because my son went along with it. Now my son feels bad he lied for his Dad. He thought I was just going to have to leave the house and that would stop... Read more »

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 11, 2022

A protective order may be issued in three successive steps, each with greater due process protections for the accused. To protect against an immediate harm, a emergency protective order can be issued ex parte by the magistrate or general district court judge on a sworn statement or affidavit,... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: Does living back together and temporarily reconciling reset the divorce?

I have been separated for 3 years. Extended due to pandemic and custody.

I moved back in August. Does that have any effect on the proceeding if one of us wants to reset everything?

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 10, 2022

The separation required for a no fault divorce in Virginia must be continuous and uninterrupted. The legally-required separation means the parties are no longer living together as husband and wife. At least one of the parties must intend that the separation is permanent, and that intention must... Read more »

2 Answers | Asked in Probate for Virginia on
Q: I would like to know how do I move forward on finding what assets my dad who passed away last year had.

My sister sold his house in Chicago and moved him to Virginia three months before he passed away. I checked the Prince William County Probate office and a Will has not been filed. What Kind of attorney should I look for? I need an Virginia attorney.

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 3, 2022

Attorneys who help people with property of an estate of a decedent, typically identify themselves by one or more of the following practice areas: probate, estate administration, elder law, or wills and estate planning. Usually, the last residence of the decedent is the proper place or... Read more »

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1 Answer | Asked in Foreclosure and Bankruptcy for Virginia on
Q: Which Virginia court handles foreclosure excess proceeds disbursements?
James H. Wilson Jr.
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James H. Wilson Jr.
answered on Oct 23, 2022

Fiduciaries in Virginia must file accountings and reports with the Commissioner of Accounts for the city or county involved. If a foreclosure auction results in a surplus of proceeds, most substitute trustees would file an interpleader action in the Circuit Court and name all interested parties as... Read more »

1 Answer | Asked in Family Law and Child Custody for Virginia on
Q: What age does Virginia allow children to make decisions on whether or not they want to see their parents ?

I am thier grandmother and have had custody for nearly 9 years. They have been through a lot mentally and emotionally . Thier mother has seen them once in like 7 years and has not kept contact. The kids are now 11 yrs old and 13 years old. Neither of the kids wants anything to do with her and I do... Read more »

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Oct 19, 2022

There is no specific age at which a child can express a custody or visitation preference. The Code of Virginia allows such a reasonable preference if the child is of "reasonable intelligence, understanding, age, and experience to express such a preference." When allowed to express a... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: post-nupital and property settlement agreement

should we sign with notary together or should wife sign first, separated 15 months in va

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Oct 17, 2022

A prenuptial agreement or marital agreement, variously titled as a separation agreement, post-nuptial agreement, or property settlement agreement, must be in writing and signed by the parties to be enforceable. There are usually notarizations or acknowledgement(s) of the signatures by a... Read more »

1 Answer | Asked in Divorce and Bankruptcy for Virginia on
Q: 2015 my ex was ordered to pay $5K in equitable distribution, but he never paid and was contempt. He since filed Ch. 7.

He filed Ch. 7 in 2017. We live in VA. Can I take him back to court to enforce the order in the divorce decree?

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Oct 5, 2022

A contempt proceeding for an ED violation may or may not be a violation of the automatic stay in bankruptcy. The question is whether the purpose of the proceeding is to extract a private monetary remedy (not allowed) or to uphold the dignity of the court (allowed). Some have cast this as civil v.... Read more »

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