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Questions Answered by James H. Wilson Jr.
1 Answer | Asked in Estate Planning for Virginia on
Q: Would a Durable Power of Attorney and a Health Directive give an unmarried couple the same rights as a civil marriage?

There are no children involved in the 18-year relationship. We are more concerned with something unexpected such as an accident rather than separation.

James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 13, 2020

No, durable powers of attorney and advance medical directives do not create the same rights and duties as marriage. The public policy of the Commonwealth support marriage as a fundamental institution of society in ways not enjoyed by mere parties to a contract. Spouses enjoy a number of rights and... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: When will we be able to get a divorce?

Jan 24 will be a year since we separated but our daughter was born in October. We both agree that we are never getting back together

James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 9, 2020

The required separation agreement for a no fault divorce in Virginia is one year from the date of separation, with at least one of the parties intending for the separation to be permanent, and maintaining that intent continuously for the period of separation. If the parties have no minor children... Read more »

2 Answers | Asked in Estate Planning for Virginia on
Q: Under Virginia Law can either spouse will their half of home to kids from a prior marriage in case they pass first?

This to ensure my kids get half the house in case I pass first.

James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 5, 2020

Most married couples in Virginia own their real property as tenants by the entirety with the common-law right of survivorship. This tenancy is based on the old common-law fiction that a husband and wife were a single legal unit. Each spouse owns the undivided whole. Upon the death of either, the... Read more »

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1 Answer | Asked in Criminal Law for Virginia on
Q: If the state of VA does not have a defendant to press charges does that mean the state does not have a case?

arrested for "assault on family member"

Officer stated that VA code requires someone to be arrested if the police are called for a domestic issue. My husband threatened to leave with our child. I pulled his shirt to stop him and also beeped his horn so a neighbor would assist. They called... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 4, 2019

It is not unusual in family abuse cases for the complaining witness to decline prosecution, after thinking the matter over. Nevertheless, a criminal offense is considered an offense against the state, not between two private parties, and the state could compel a witness to testify against that... Read more »

1 Answer | Asked in Family Law for Virginia on
Q: Can I take a withdrawal slip from credit union to incapacitated spouse to have signed so I can get money?

How do I go about getting money from my husbands account as an emergency? Someone said I can take a withdraw form and have him sign it and put thumbprint in front of witnesses. Is this true?

James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 2, 2019

A person may act for an incapacitated person either as a guardian or conservator by virtue of a court order, a court appointed guardian ad litem, or pursuant to a durable power of attorney. The durable power of attorney must be signed by the principal before becoming incapacitated or during a... Read more »

1 Answer | Asked in Estate Planning, Landlord - Tenant and Probate for Virginia on
Q: My Fathers widow is still living in my parents home-How do we have her removed so that we can sell the home?

My Father passed in January and left his personal property and his home to his children. The widow of 8 years is not

cooperating and I would like to sell the home to settle my Fathers affairs. The widow believes everything is hers and will not allow us to have the person family items.

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 26, 2019

You do not indicate in your question whether your father died testate - with a will - or intestate - without a will, whether his surviving spouse is claiming any statutory rights to his augmented estate or family residence. I would assume he died with a will because you do not recognize any rights... Read more »

1 Answer | Asked in Divorce for Virginia on
Q: My ex's attorney is demanding that I provide him my SSN to file a no-fault divorce in VA, is this true?

we have been legally separated for 3 years. The complaint was filed in 2017 and the case is still active. My ex's attorney is demanding that I give him my SSN in order to file an affidavit to submit to the court. I don't think that I need to provide this confidential information.

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 22, 2019

The spouses's social security numbers appear on at least two forms in a divorce in Virginia, the VS-4 form for Vital Statistics and a Confidential Addendum for identification purposes. The Confidential Addendum is sealed and confidential in the case file, so members of the public cannot view it.... Read more »

1 Answer | Asked in Contracts and Divorce for Virginia on
Q: What constitutes an unenforceable or void contract?

Neither representing attorneys or judge adhered to the Federal Military Spouse Protection Act regarding community property. I would of been under the 1982 rules. I did not know about this federal act at the time.

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 9, 2019

Your question contains a mixture of somewhat complex issues and illustrates a conflict between federal and state law. The first issue is preemption. Preemption occurs when exclusive federal jurisdiction and law on specific areas of law prevent action under state jurisdiction and laws, for... Read more »

1 Answer | Asked in Family Law for Virginia on
Q: Can previous interrogatories and admissions be used in appeal case from JDR to Circuit Court in Virginia?

I was granted primary custody of a child in July. The other party appealed and they were granted a trial de novo in Circuit Court. We are both currently pro-se. I previously submitted admissions and interrogatories for the case in July. The other party responded but did not provide their own... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Nov 7, 2019

A witness can be impeached by prior inconsistent testimony or sworn responses in discovery. Impeachment requires a particular sequence of questioning that allows the witness to first give correct testimony, recollect instances of prior testimony, and then acknowledge prior inconsistencies. There... Read more »

2 Answers | Asked in Estate Planning and Probate for Virginia on
Q: If a parent had a child, outside of marriage, is that child due an inheritance if that parent dies in VA?

Grandparents passed with a will stating equal distribution among the surviving children. One of their children passed without a will. Sale of grandparents real estate to be divided among children of the recently deceased. Fathered a child outside of wedlock. Child was left out of listing of heirs... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Oct 10, 2019

This is a somewhat complicated issue which should be discussed with an experienced Virginia probate lawyer with the benefit of an illustration of the family tree. Generally, a child or descendant of a child, born out of wedlock, has the essentially the same rights as an heir as the other children... Read more »

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1 Answer | Asked in Child Custody and Divorce for Virginia on
Q: If the mother has primary custody of her children & the father secondary custody in the state of Virginia does the

Father have to pay child support

James H. Wilson Jr.
James H. Wilson Jr. answered on Sep 23, 2019

It depends. The calculations must be run for each situation.

When each parent has at least 90 days custody of a child in Virginia, the shared custody and sole custody child support worksheet calculations are used, with the lesser amount being the presumptively correct amount of child...
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1 Answer | Asked in Divorce for Virginia on
Q: 8.01-296 VA code..I've given ALL documents to court and defendent by sheriff postings twice.

Defendent did not respond and is well beyond 21 days. I told clerk i wanted to pursue judgement by default. Clerk said there are some papers to fill out. What papers? Clerk told me I was almost done and had only one thing left to do but couldn't tell me what. Do I have to write a letter to the... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 22, 2019

Judgments or decrees by default are not allowed in divorce or annulment cases in Virginia.

Rule 3:19 of the Rules of the Supreme Court of Virginia provides as follows:

..."(c) Default Judgment and Damages.

(1) Except in suits for divorce or annulling a marriage, the court...
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1 Answer | Asked in Divorce for Virginia on
Q: § 8.01-296. Manner of serving process upon natural persons. I have read this statute many times. Can you explain it

I served the divorce complaint by sheriff service. The judges telling me that I did not properly serve the complaint. I'm not sure what to do next

James H. Wilson Jr.
James H. Wilson Jr. answered on Apr 19, 2019

The starting point for service of process in divorce cases is Virginia Code Section 20-99. The primary consideration in service for divorce cases is the relief sought. Under the concept of divisible divorce, a marriage consists of two components - a legal relationship or res, and property rights... Read more »

2 Answers | Asked in Contracts, Family Law and Tax Law for Virginia on
Q: What is a valid disclaimer of marital interest in Virginia and how do I go about drafting such a disclaimer?

My wife is in the process of making a business investment, however I as the husband can't be party to the the business and I need to make a disclaimer to that effect. Essentially a disclaimer of marital interest.

James H. Wilson Jr.
James H. Wilson Jr. answered on Mar 30, 2019

Spouses in Virginia can enter into enforceable marital agreements under Virginia Code Section 20-155 of the Virginia Premarital Agreement Act. These agreements take different forms, including prenuptial agreements or antenuptial agreements, marital agreements, separation agreements, stipulations... Read more »

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1 Answer | Asked in Divorce for Virginia on
Q: What are the notices required for spousal support and what do I need to include in the paper work for divorce?

It is referring to VA code 20-107.1 (H) Also why do I have to redo my plaintiff affidavit?

James H. Wilson Jr.
James H. Wilson Jr. answered on Mar 4, 2019

Virginia Code Section 20-107.1(H) sets forth the required notices for court-ordered spousal support only, while Virginia Code Section 20-60.3 sets forth the required notices for court-ordered spousal support where the parents have a mutual child support obligation. Local practices in Virginia... Read more »

2 Answers | Asked in Bankruptcy for Virginia on
Q: my chapter 13 was dismissed and had to file another one to keep my home, does the second one plays by the same rules?

my first one was dismissed because I was behind on my mortgage payments and just wondering if the second case is under the same rules or have stricter rules.....just want to make sure

Thanks for any advice I can get

Chapter 13 filed in Virginia

James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 30, 2019

The protection against creditors under the automatic stay in bankruptcy only lasts for the first 30 days in a second case filed within a year of dismissed prior bankruptcy. In most cases, the debtor should file a motion to extend the stay past the first thirty days by demonstrating that the second... Read more »

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2 Answers | Asked in Probate and Estate Planning for Virginia on
Q: What happens if one of the witnesses to a holographic will dies before the person who wrote the will?
James H. Wilson Jr.
James H. Wilson Jr. answered on Jan 17, 2019

Virginia recognizes the validity of holographic will. A true holographic will, written entirely in the handwriting of the testator, does not require two witnesses at time of execution; however, two disinterested witnesses are necessary to prove the will, but these witnesses may or may not have... Read more »

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1 Answer | Asked in Family Law and Child Support for Virginia on
Q: My support order includes 75% of medical bills. I am getting billed $500 plus a month- it's a struggle. Modification?
James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 19, 2018

Child support orders in Virginia can be modified upon a threshold showing of a material change in financial circumstances. A child support order will normally include responsibility for a parent's income share of medical bills not covered by health insurance. It is not clear from your question... Read more »

3 Answers | Asked in Bankruptcy for Virginia on
Q: I have a judgement from July 2011 and was granted a discharge in December 2011. How do I get the judgement off my file?

The judgement is attached to my credit report. I am trying to figure out how to get it off.

James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 18, 2018

Under Virginia Code Section 8.01-453, the clerk of the court may enter a satisfaction upon presentation of a certificate or at the direction of the creditor's attorney. Under Virginia Code Section 8.01-455, a judgment debtor can move the court to mark a judgment as satisfied if it has been paid or... Read more »

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1 Answer | Asked in Divorce and Family Law for Virginia on
Q: Is it necessary to file for Divorce in VA if Marriage Certificate was not filed with court within 30 days of ceremony?

My fiance and I obtained a Marriage License from a VA Court Clerks office and held a marriage ceremony in the presence of 150 guests (within 60 days time of obtaining the license) in Virginia. However, the marriage certificate was never filed by the officiant after the ceremony. If the Marriage... Read more »

James H. Wilson Jr.
James H. Wilson Jr. answered on Dec 15, 2018

Virginia's public policy favors marriage and the validity of marriage in the Commonwealth. As such, Virginia has several curative statutes that may validate imperfect marriages. In addition, a party who questions the validity of a marriage may file a suit to determine the validity of the marriage... Read more »

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