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Questions Answered by James H. Wilson Jr.
1 Answer | Asked in Divorce and Family Law for Virginia on
Q: Can I get a divorce after a year of separation if we lived in the same house for the year of separation in Virginia?

We are sleeping separately in different rooms.

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Feb 28, 2024

In the case of Bchara v. Bchara, the Virginia Court of Appeals recognized that a husband and wife could live separate and apart under the same roof. The inquiry for a particular separation is fact specific. The concept of a separation under the same roof is not universally accepted throughout... View More

1 Answer | Asked in Divorce and Family Law for Virginia on
Q: If one spouse refuses to sign agreed PSA can I still get a divorce after 3 years?

All child support/custody is settled as well. How can he force me to stay married while living with his mistress?

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Feb 20, 2024

A divorce in Virginia does not require the mutual consent of the spouses. Either spouse can file for a divorce from the other, and a judge will enter the divorce if the court has jurisdiction and the plaintiff introduces sufficient evidence in support of the grounds for divorce. In a divorce case... View More

3 Answers | Asked in Criminal Law, Landlord - Tenant and Civil Litigation for Virginia on
Q: What do I need to do when a past tenet takes me with a warrent in detinue for belonging that wasn't left on the property

I received a warrant in detinue from a past tenant for belongings that wasn't left on the property

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Feb 7, 2024

A Warrant in Detinue is a pleading used in a Virginia General District Court or small claims court to recover specific personal property, or the value thereof. The Plaintiff has the burden of proving title and that such specific property in the possession or control of the Defendant, or was... View More

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1 Answer | Asked in Divorce, Foreclosure and Family Law for Virginia on
Q: Is my wife responsible for the foreclosure of her ex-husbands house if she waived all housing rights when she divorced.

The reason for the question is that he passed away before the foreclosure. As I said, she waived all housing rights in the divorce agreement, but it seems as though she'll have a "foreclosure" on her record if we don't sort this out. My understanding is if she's susceptible... View More

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Jan 24, 2024

If the mortgage loan and title to real property in Virginia is joint, then both spouses have rights and liabilities. If one spouse will receive the real property incident to a divorce, that spouse should be required to sell or refinance the property in order to remove the other spouse from his or... View More

1 Answer | Asked in Divorce and Family Law for Virginia on
Q: Can I file for a divorce without my spouse in Virginia?

My spouse is trying to keep in a marriage against my will.

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Jan 16, 2024

A divorce can be obtained in Virginia without the mutual consent of the parties, provided the appropriate Circuit Court has jurisdiction. If a spouse wants to affect his or her spouse's property rights, the court must have personal jurisdiction over the defendant spouse, which requires some... View More

5 Answers | Asked in Bankruptcy for Virginia on
Q: If all my income is Social Security and pension, can I still file chapter 13 in Virginia?

I have too much equity in my home for chapter 7. And I don’t want to lose my home. I am making payments on the mortgage and I’m up-to-date and will be able to remain up-to-date. I own one car with no loan. If I have to file bankruptcy, what are my options?

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 27, 2023

Yes, social security income and a pension count as regular income for eligibility for chapter 13 relief. You should meet with an experienced bankruptcy lawyer to discuss your options. In Virginia, real estate held in a tenancy by the entireties is exempt or protected from a creditor of either... View More

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1 Answer | Asked in Divorce and Family Law for Virginia on
Q: My husband and I were together but not married when we bought our home in 2010. Now married, am I entitled to equity?

Been married since 2012, and the house has been our family home since. He never added me to the deed or loan claiming I couldn't be on them because we weren't married. I have paid into the mortgage for several years and i have paid for upgrades, repairs and maintenance. Utilities are in... View More

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Nov 8, 2023

Equitable distribution is a 3 step process in Virginia. First, the judge classifies all property as marital, separate, or hybrid - a mix of marital and separate. The judge also classifies debt as marital or separate. Second, the judge gives a valuation to all items of marital and hybrid... View More

1 Answer | Asked in Family Law and Child Custody for Virginia on
Q: If the judge says he's not going to hear a case for modification only the case for contempt then makes a ruling on both

Is that legal

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Oct 27, 2023

Judges have a great deal of discretion in how they run their courtroom. Some judges even change their minds during the course of a proceeding. If a litigant does not like how a judge rules in a particular case, the litigant can either object with reasons to create a record for appeal, if the... View More

2 Answers | Asked in Divorce and Family Law for Virginia on
Q: I owned my before marriage. Is my spouse entitled to any equity accrued to the home. I reside in Virginia
James H. Wilson Jr.
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James H. Wilson Jr.
answered on Oct 27, 2023

If the spouses are unable to agree on the division of marital property, a judge sitting in equitable distribution incident to a divorce can divide marital property and allocate marital debt. The first step for the judge is to classify all property as separate, marital, or hybrid - a combination of... View More

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1 Answer | Asked in Foreclosure for Virginia on
Q: Hello, Through a tragic accident and huge medical bills, my daughter had her house foreclosed on a week ago.

She owed 100k and it sold for 150k at auction. There are no other leins on the property. Does she get the 50k surplus from the sale?

If so, how do we go about claiming that money?

Thank you,

Jenny F.

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Oct 15, 2023

The trustee or substitute trustee who sells real estate in Virginia at a foreclosure auction at the direction of the noteholder must account for the proceeds of the sale to the county or city Commissioner of Accounts in the jurisdiction where the property is located. The provisions of the deed of... View More

2 Answers | Asked in Divorce and Family Law for Virginia on
Q: Who keeps the house in a divorce when the deed is in both names but the mortgage is in the husbands name?

We live in Locust Grove VA

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Oct 5, 2023

A Virginia Circuit Court judge sitting in an equitable distribution hearing has several options with respect to jointly owned real property. The judge can order the conveyance to either party, permit either party to buy out the other and order the assumption of indebtedness, or order the sale of... View More

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2 Answers | Asked in Divorce and Family Law for Virginia on
Q: I filed for divorce and the judge said doesn't meet statutory requirements. Final decree has not been entered

final decree has not been entered due to an incomplete filing and has not been reviewed by chambers

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Oct 3, 2023

Virginia Circuit Court judges use law clerks to review the uncontested divorce filings. The law clerks are typically relatively recent graduates of law schools, who work as clerks as their first job out of law school. They review the file before submitting it to a judge for his or her final... View More

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1 Answer | Asked in Employment Law for Virginia on
Q: I have been terminated by Long & Foster and am the procuring cause for an upcoming commission they wont pay unless I

sign with another Agency. They terminated me Aug. 14, my license is now inacative.

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Sep 5, 2023

Licensed real estate salespersons are typically independent contractors who act as agents on behalf of a licensed real estate broker. A broker may be entitled to a commission when it is the procuring cause of a sale of real estate. Commissions from the sale of real estate are paid to licensed... View More

2 Answers | Asked in Real Estate Law, Consumer Law, Small Claims and Insurance Bad Faith for Virginia on
Q: Should I file an insurance claim, work with my neighbors or contact an attorney?

The issue involves an HVAC company (AllTech) that performs HVAC and plumbing services on my condominium (Unit 304) and my neighbor’s (Unit 404) who lives directly above me. The issue is that AllTech failed to properly re-insert the condensation pipe into the drain when performing service on Unit... View More

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Aug 21, 2023

Assuming the condominium unit is in Virginia, I don't understand why you would not report a claim to your hazard insurance company for damage to your unit. The insurance proceeds will be used to repair the damage to your unit. Your insurance company will be subrogated to your right's to... View More

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1 Answer | Asked in Consumer Law, Small Claims and Real Estate Law for Virginia on
Q: I am seeking counsel to see if working with an attorney is a better course of action than filing an insurance claim.

The issue involves the HVAC company (XXXX) that performs HVAC and plumbing services on my condominium (Unit 304) and my neighbor’s (Unit 404) who lives directly above me. The issue is that AllTech failed to properly re-insert the condensation pipe into the drain when performing service on Unit... View More

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Aug 20, 2023

Assuming your unit is in Virginia, I am not sure why you would hesitate to use your hazard insurance for a claim. Your insurance carrier will straighten it out, and use subrogation to recover from the party who is liable. Sure, there is likely common element damage as well, that should be covered... View More

1 Answer | Asked in Divorce and Family Law for Virginia on
Q: Can my spouse file for divorce & choose NOT to incorporate signed/notarized PSA?

My spouse & I have been separated for a year now, we have 1 minor child. We have a signed/notarized PSA and now my spouse wants to file for divorce now and not have the PSA included. The signed/notarized PSA states we sell the house and pay all outstanding bills with the equity. Spouse now... View More

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Aug 17, 2023

A spouse served with a Complaint for Divorce in Virginia has 21 days to file a responsive pleading. Typically, if the defendant spouse did not agree to the allegations in the Complaint, the responsive pleading would be an Answer and Counterclaim, starting a contested divorce case.

It is...
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2 Answers | Asked in Probate for Virginia on
Q: What is the easiest way to file a petition city of Chesapeake asking a judge to appoint an executor for my mothers estat

Va is a majority rules state and 5/7 siblings have agreed that the property needs to be sold we are not allowed in it by opposing siblings and she prior to mother’s death isolated her until we took legal action

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Aug 3, 2023

The personal representative of an estate is either an executor or an administrator. An executor is named in the will or an individual who qualifies for the role when the named executor declines or is unable to exercise that role, or the will fails to name an executor. The successor executor is an... View More

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1 Answer | Asked in Real Estate Law for Virginia on
Q: My wife is planning to buy an rental property in VA. Me and my wife co own a primay home in MA

I have a question whether I should go on the title with her on the investment property or Is it better to stay off the title ? My intention is to protect our primary home and personal assest against any law suits we might face in the future on the rental property

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Aug 2, 2023

A married couple buying an investment property in Virginia should consider several options for holding title. Most couples hold title to real property as tenants by the entirety with the common-law right of survivorship. The tenancy protects the property from the debts of either spouse alone,... View More

2 Answers | Asked in Estate Planning, Landlord - Tenant and Real Estate Law for Virginia on
Q: An estate is trying to evict us. The owner died but we paid him a cash towards the property with verbal agreement.

We made a gentlemans agreement with the owner to rent to own his property. We paid him $25k for down payment and as a show of good faith he wrote us a quit claim for 2 trailers on the land. He passed and now the estate is trying to evict us with refusal of any funds, but the beneficiary (his... View More

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Jun 20, 2023

The wording of your description of the circumstances is not clear. Contracts can be verbal or implied through action. Verbal contracts can be written or oral. A trailer may be personal property or it may be part of real estate if attached and the title is changed. An estate acts through the... View More

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1 Answer | Asked in Family Law for Virginia on
Q: If my husband is incarcerated in WI for a felony, can I move from VA to another state with our children?

Husband has been incarcerated for 3 years now and rarely contacts (holidays or wants money). No court papers have been filed regarding marriage or custody. Our house here is in his name only. He has no family here, but I have a few.

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Jun 14, 2023

In the absence of a court order, both biological parents have equal rights to, and responsibilities for, their minor children. If the parents separate, either party may file a petition for a determination of custody, visitation, and child support. Once an order is in place, that controls until it... View More

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