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Virginia Family Law Questions & Answers
1 Answer | Asked in Civil Rights, Family Law and Health Care Law for Virginia on
Q: Is my past mental health evaluation protected by HIPAA PRIVACY RULE or civil rights ; taken without permission and used

After being in relationship 7 years with a registered nurse relationship ended with a 1 year old child . EXTREMELY OBVIOUS that she took my personal mental health evaluation (without my permission) preformed 20 years ago . without shadow of doubt secretly used against me in a 5 year horrific... Read more »

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

It is not clear that the evaluation was used against you. You could always check the court's file at the clerk's office. A court ordered evaluation could be admissible without an expert witness. Anything else would be hearsay, and the evaluator would likely be required to appear and... Read more »

3 Answers | Asked in Estate Planning, Family Law and Real Estate Law for Virginia on
Q: When splitting up the money left in an estate, how do I take out judgements against beneficiaries paid by the estate?

I have 2 siblings, both of which had separate judgements paid off by the estate when we sold the family farm. The siblings along with myself were listed as co-owners of the estate when my dad passed, so the judgements had to be paid before any funds from the sale were released. I shouldn't... Read more »

Nina Whitehurst
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Nina Whitehurst
answered on Sep 8, 2022

Take the net proceeds of the sale and add back the amounts of the judgements that were paid, then divide that sum by the number of equal shares. Each beneficiary’s share is that quantity less the amount of judgements paid on his or her behalf.

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1 Answer | Asked in Estate Planning, Family Law, Real Estate Law and Probate for Virginia on
Q: Hello iam the beneficary of my mother's estate and it is in the will to sell her house and to split the preceding with

My 6 siblings and one will not get out for me to sell the house in virginia. What can I do without having to go through probate

Anthony M. Avery
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Anthony M. Avery
answered on Sep 2, 2022

Without Probate, the Will means nothing. Any of the Heirs as Tenants In Common can file a Partition action.

1 Answer | Asked in Family Law and Child Custody for Virginia on
Q: I have sole legal and physical custody, petition for amendment but I'm not recognized as respondent. How can this be ?

I am a paternal great grandmother with custody of my great grandson who has lived with me since birth and will be 14 this October and has never lived with his mother who has petitioned to amend custody and my grandson, the father is currently incarcerated and has been provided a GAL. Neither... Read more »

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Sep 2, 2022

In Virginia, a motion to modify or amend must reference the existing order and recite its relevant provisions. If a third party has custody or visitation, that person is a necessary party to the proceeding, and must be served with notice. In order to prevail, a person seeking to modify an... Read more »

1 Answer | Asked in Family Law for Virginia on
Q: If someone gives false info on a marriage license, is the marriage invalidated? Virginia.
James H. Wilson Jr.
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James H. Wilson Jr.
answered on Sep 1, 2022

Virginia is not a common-law marriage state and requires that the parties to a marriage in Virginia must first obtain a license from the state. Virginia Code Section 20-31 corrects defects in marriage licenses if the marriage is otherwise lawful and is consummated by the parties with the belief it... Read more »

1 Answer | Asked in Divorce, Family Law and Child Support for Virginia on
Q: This past June my daughter turned 18 here in the state of Virginia. She graduated from High School in May.

This past June my daughter turned 18 here in the state of Virginia. She graduated from High School in May. She moves into her apartment next month (Sept). I am veteran and my daughter will be going to school on my GI Bill and Virginia disability Dependent College program. Her mother has... Read more »

James H. Wilson Jr.
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James H. Wilson Jr.
answered on Aug 15, 2022

Child support in Virginia can only be awarded retroactively to the date that the petition was filed in the case of an original determination, or when motion to modify was filed and served on the payer parent in the case of an attempt to change support. The fact that a parent earned more during a... Read more »

1 Answer | Asked in Contracts, Estate Planning, Family Law and Real Estate Law for Virginia on
Q: Is a verbal commitment legal in the courts.

My parents told me they wanted to leave me their house when they both past away. I sold my house and moved in with them. One year later my father pasted away and not even 2 months later my mom said that she wasn't going to leave me the house because she had 3 other kids to think about. Is this... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Aug 14, 2022

Almost all contracts are verbal, either oral (spoken) or written. A last will and testament requires certain formalities, as does a revocable or irrevocable trust. Both must be in writing and signed. In spite of the absence of a written will, trust, or contract, in some instances a court can... Read more »

1 Answer | Asked in Divorce, Family Law, Child Custody and Civil Rights for Virginia on
Q: Can my husband marry a second wife overseas? We are married in Islam as well which he’s allowed to marry 4 wives

But at the same time we are legally married in the us

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Aug 11, 2022

The U.S. Constitution requires each of the 50 states to give full faith and credit to the valid acts of its sister states. There is no such requirement for the actions of other countries, in the absence of a treaty. Instead, the concept of comity controls. Comity allows a state to recognize the... Read more »

1 Answer | Asked in Contracts, Divorce, Family Law and Real Estate Law for Virginia on
Q: Can my spouse evict my family from while I'm away on deployment?

I currently have my brother and his family residing at my home in preparation for me to leave on deployment since my spouse refuse to take care of the house. My brother is the POA for me while I'm away, however do I need to have additional documents saying I allowed them to live there.... Read more »

Thomas H. Roberts Esq
Thomas H. Roberts Esq
answered on Aug 8, 2022

You should provide to him a document expressly authorizing him to stay in your house to care for the same.

Here's some old Virginia law: "One joint tenant, co-parcener, or tenant in common, although he has a right to the possession of the whole against strangers, cannot make a...
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1 Answer | Asked in Family Law for Virginia on
Q: Can I legally get power of attorney over my mother, even though she is still married?

My mother has dementia, and she just married the wrong person. This man has decided to give up, moved me in with them to take care of her, told me he's not spending any more money and that I need to get a power of attorney over her.

One would think that would be his responsibility. Am... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Jun 2, 2022

A principal must have the capacity to contract to give a power to an attorney-in-fact. That generally requires understand the nature and consequences of the legal act. If a principal lacks capacity or is incompetent, the proper arrangement is to have a guardian or conservator appointed for the... Read more »

1 Answer | Asked in Family Law and Estate Planning for Virginia on
Q: How to find out if my deceased father left anything for his children
Richard Sternberg
Richard Sternberg
answered on May 26, 2022

Have you asked your siblings or (step-)mother or other relatives if there is a Will or someone is filing probate? Did he have assets, and should you file as Administrator? A consult with a lawyer discussing your situation might be helpful, and, if that lawyer opens the estate, you’ll be repaid... Read more »

1 Answer | Asked in Family Law for Virginia on
Q: Are children entitled to anything after a parent dies, but leaves a spouse?

My father died without a WILL and his wife asked me and 5 other siblings to just sign a document that would release any assets that he may have had. She indicated that the document didn't have anything to do with us. When we asked to see what items we were waiving, she said that it didn't... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on May 20, 2022

Children of a decedent, who are not children of the surviving spouse, share 2/3rds of the intestate decedent's estate with the surviving spouse, who is entitled to 1/3 of the estate. There are also various statutory allowances and exemptions available to a surviving spouse and to any minor... Read more »

1 Answer | Asked in Divorce, Family Law and Child Custody for Virginia on
Q: VA- Joint custody -required to discuss decisions and parents disagree on child getting driver's permit.

Custody papers only say we must discuss important decisions but does not specify what constitutes important and what happens when we don't agree.

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on May 4, 2022

A decision to allow a child to get a learner's permit involves legal custody. For true joint legal custody, there would be a greater burden than simply imposing an obligation to discuss decisions: the parties would have to agree on legal decisions concerning the child. Sometimes, judges... Read more »

1 Answer | Asked in Family Law and Child Custody for Virginia on
Q: How do I find a psych evaluator to provide expert testimony in court that my ex-wife is alienating me from my kids?

I'm in Northern VA, it's been a challenge to find someone who can competently evaluate parental alienation.

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Apr 11, 2022

That is called a custody evaluation. Child psychologists who offer those usually advertise themselves as custody evaluators and expert witnesses. In the Richmond area, there a few who do most of them. When I have called some that are not available, they will usually recommend others who might be... Read more »

1 Answer | Asked in Divorce and Family Law for Virginia on
Q: What to do when you know that your ex-wife is breaking a court order by leaving the state with the kids every weekend?

Not only is she leaving the state, but she drops the kids off with her boyfriend for him to watch for the weekend. She then returns to the state of VA to go to work for the weekend. Should I get an ex parte request (if I have strong evidence), emergency order, or call for a child welfare check when... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Apr 10, 2022

Court orders in Virginia are enforced through a contempt proceeding. After reopening the case, the proceeding is initiated with the filing of a verified petition describing the violation of the court order, along with a rule to show cause. If the judge finds the grounds sufficient, he or she will... Read more »

1 Answer | Asked in Estate Planning, Family Law, Elder Law and Health Care Law for Virginia on
Q: See below.

My partner and I have moved back to the Charlottesville area to provider assist with his grandmothers care. It is the hope of my partner and his family that his grandmother can qualify for Medicaid, once she has Medicaid, she can be moved into an assisted living facility paid for by Medicaid. The... Read more »

Ross Cameron Hart
Ross Cameron Hart
answered on Apr 4, 2022

You are asking a very complex question on a short answer forum and mis-understand some of Medicaid rules. Aunt may or may not be wrong - there are several ways this can be handled.

You need an Elder Law Attorney to advise you, and Charlottesville has several very good ones who are...
Read more »

1 Answer | Asked in Family Law for Virginia on
Q: Is there any way that I can legally evict my husband? Do I have to let him drive the car that's in my name?

He has been in jail for a week and a half and is trying to come back here and I don't want him here. I don't know when he is getting out because he is waiting for a bond hearing. He has not recently threatened me for me to get a protective order. I plan on filing for separation next... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Mar 30, 2022

I have had clients change the locks after a spouse leaves the marital residence with the intention of deserting and abandoning the marital relationship. The other spouse usually complains but relents. Either spouse can file for divorce and request exclusive possession of the marital residence for... Read more »

1 Answer | Asked in Contracts, Family Law and Antitrust for Virginia on
Q: Trustee of my Grandfathers will is dodging paying anything out of account to those entitled to its benefits. help

My grandfather setup a trust within his will that will pay for my college courses/apartment while im enrolled at an university. I have been trying to get him to follow through and help me get money from this account. In the 5 emails I have with him it feels like i have been negotiating to get what... Read more »

James H. Wilson Jr.
PREMIUM
James H. Wilson Jr.
answered on Mar 30, 2022

The answer to your question depends on the provisions of the testamentary trust. These trusts sometimes are set up as spendthrift or discretionary trusts. This gives the trustee the right to make disbursements purely at his or her discretion, in order to protect the corpus of the trust from... Read more »

1 Answer | Asked in Family Law and Elder Law for Virginia on
Q: Can I be appointed as my brother's guardian? And would I be financially responsible for my brother's care?

My 71 yr old brother was diagnosed with a brain tumor in January of this year. Humana Advantage Medicare denied his continued care at the rehab center as it reported that he was making progress (walking 20 feet with someone holding onto him is not progress). He lived alone & cannot live on... Read more »

Ross Cameron Hart
Ross Cameron Hart
answered on Mar 10, 2022

Short answer - yes, you can be appointed assuming your brother in law is not capable of granting a power of attorney. And no, you won't be financially responsible for his debts provided you ALWAYS say you're acting as guardian (or conservator.

BUT YOU NEED TO CONSULT A LAWYER....
Read more »

1 Answer | Asked in Estate Planning, Family Law and Probate for Virginia on
Q: My aunt's husband passed away and there was unpaid credit card debt. Does she owe this if it is not in her name?

What do we do if it's not in her name and only her deceased husbands name? There is one credit card that she is a joint user for. We have gotten death certificates so far but nothing else.

Richard Sternberg
Richard Sternberg
answered on Feb 10, 2022

The wife is not liable for credit card debt she did not contract to pay by being on the card or using the card. She may be liable if the charges were for something the law calls necessaries, like medical care, food, clothing, and other needs of her spouse, but that is liability for the necessary... Read more »

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