If you’re amidst a divorce battle, while this may in itself be a very emotionally daunting experience, it is equally important to understand that you may have to contend with a child custody case if the judge decides you and your ex-spouse need a custody evaluation.
A custody evaluation is a layout or guidelines as to how both parents can play their part in raising their child while being divorced. It is going to tell you who is going to make the necessary decisions, etc. While you can decide all of this yourself during or before entering into a divorce proceeding, it is when ex-spouses aren’t able to reach a conclusive decision that the court rightly intervenes.
Understanding the Nuances of Child Custody Evaluations
Evaluation for child custody is essentially a report that is compiled by a court-assigned specialist, also known as an “evaluator”. The report the evaluator makes contains summarizations and analyses that they make and based on their finding, they recommend which parent can make the important decisions in the best interest of the child and who would ultimately get the custody. Evaluators are trained experts and a lot of them are also qualified child therapists and psychologists.
The process of evaluation can span from a few days to a couple of weeks. The professional will conduct thorough one-on-one interviews with your child and gather important information to ensure that the child is not being fed lies or manipulated by one parent to say particular things to the evaluator.
When Is a Custody Evaluation Required?
If it is proving difficult for divorced parents to reach an amicable decision regarding who gets to keep custody or make important decisions in line with the child’s needs, even after going through interventions and mediation, it then becomes necessary for the court to step in and make the decision. Parents also have the opportunity to willingly request an evaluation even if the court does not seek it.
Custody evaluations are typically the right choice when it comes to divorce cases where both ex-spouses don’t seem to agree on anything about the custody or where one or both parents are pointing fingers at each other claiming that the other parent is not fit enough to responsibly take custody.
How To Select the Right Child Custody Evaluator
Both parties have the chance to select an evaluator or they can have the judge decide. However, you may also consider discussing the matter with your attorney, who can also help choose an experienced and qualified evaluator.
Whatever decision you make, it is very important to appropriately acquire information about the evaluator whether the judge is doing the selection for you or if you are choosing one yourself. Your lawyer will be able to thoroughly ask them about their experiences and their professional experiences such as which cases they have worked on before.
More importantly, your lawyer will be able to determine whether the evaluator is biased against mothers or fathers when it comes to recommending custody during divorce.
Understanding the Process of Custody Evaluation
It is vital to take note that once an evaluator is assigned to your divorce proceeding, they are going to observe and analyze both the parents as well as the child objectively to identify a course of action that will be in the best interest of your kid. To arrive at the right conclusion, here are the following steps the professional would generally take as per the guidelines of the court:
- The mental health specialist will individually conduct interviews with the family.
- They will conduct interviews on a one-on-one basis, especially with the child.
- They will evaluate both parents and how they behave with and around their children. They will do this both at home and at their place of employment.
- The specialist may also choose to conduct detailed interviews with third parties such as the child’s doctors and physicians, teachers, etc.
- They may also decide to implement psychological evaluations and testing on both the parents and the child (if necessary).
- They will also investigate whether there has been any previous legal history of their divorce case.
The Potential Impact of Custody Evaluations on Child Visitation
Evaluations for child custody, while may seem the right course of action, do come with long-term implications on the parents’ visitation or parenting schedule. For example, the evaluation may make it possible for future parenting schedules or visitation modifications.
In addition, it is important to mention that as children grow older, their needs may change and they may also start to form their own opinions and understanding of the situation, which may beckon the court to reassess child custody in line with the child’s best interests.
In all, if you are going with a custody evaluation, you should consider future modifications and changes in your current custody schedule.
Potential Obstacles to Consider in a Custody Evaluation
Custody evaluations have their own sets of problems and complications that both parents should understand beforehand. For instance, the specialist may have issues acquiring the necessary information, which may potentially blunt their view or assessment, leading them to make a sub-optimal decision.
Similarly, it is also possible that the evaluator may succumb to personal biases in favor of either parent based on their past cases and experiences. This is why it is so important for the parents to delegate the responsibility of properly vetting the evaluator to their respective lawyers.
Challenging the Report Made By the Child Custody Evaluator
Another important element of child custody evaluations is challenging the report of the specialist. As soon as you learn or see that the evaluator is being biased or basing their judgment on obscure or subjective factors, you should discuss the matter with your attorney post-haste, preferably before the evaluator submits their report. It is possible that if you contest the report after it has been submitted to the court, the judge may throw your challenge out of the window.
that if you have a minor child from the marriage, their needs will always come first no matter how bad the divorce was. For this reason, you are required by the circuit courts to pay monthly or weekly child support payments to uphold the best interests of your minor child, paying for his medical needs, educational expenses, clothing, food, etc.
However, at times, and this does happen frequently, the non-custodial parent (payor) leaves the state or jurisdiction where he was mandated to pay child support. And time both ex-spouses leave the state or city. This is essentially where the UIFSA comes into play (Uniform Interstate Family Support Act). In Virginia, this legislation was passed and implemented in 1994.
The Need for UIFSA
As a general guideline or rule, the circuit court that initially ruled the child or spousal order in its jurisdiction will maintain its jurisdiction on the matter. However, for this to work, at least one of the two divorced spouses must remain in that jurisdiction.
This way, for example, if the non-custodial parent moves to a different state, the custodial parent (who is already living in the jurisdictional state) can file a petition with the circuit court enforcing child or spousal support payment from the non-custodial parent living in another state.
What’s more, the custodial parent can also choose to file for a modification of the child support decree, possibly having the total amount payable increased. However, you need to keep in mind that UIFSA proceedings can be lengthy and very complex, which is why it is wise to consult with an experienced family or divorce attorney who can guide you through the process.
Understanding the Functionality and Purpose of the Uniform Interstate Family Support Act
Child support orders can be made, implemented, and enforced even if both the custodial and non-custodial parents are living in different parts of the country or out of the jurisdiction of the court. Though it may seem that the payor may potentially escape having to pay child support by moving to another state where the laws are not the same, the UIFSA ensures they don’t get too comfortable.
If both divorced parents have been living in Virginia for a long time, the UIFSA makes it possible for the custodial parent to file for child support payment if the non-custodial parent is living in Virginia or even if the custodial parent isn’t living in Virginia. One of the best things about the UIFSA is the fact that it streamlines the process of state cooperation in child or spousal support making it easier for the family courts in other states to create and enforce a child support order originally issued in another state (in this case Virginia).
However, it is vital to note that the UIFSA can only allow the opening of an active case once per case and jurisdiction. On the rare occasion that there are multiple UIFSA cases opened, the governing body has the authority to decide which case to pursue and which to leave for a later date.
Moreover, the UIFSA also has the authority to implement the rules and regulations for modifying child or support payment obligations based on the legal benchmarks of the jurisdiction that is ordering the support payment and the cities or states of residence of the divorced parents and children.
This means that even if one of the parents (usually the custodial) parent remains in Virginia, which is the jurisdiction that issued the UIFSA controlling order, Virginia circuit courts will retain complete authority and jurisdiction to modify those support payments.
The General Process of Filing for a UIFSA Support Order
To file for support enforcement and modification via the UIFSA, it is important to first acquire a notarized and authenticated copy of the out-of-state child support order. You can also attempt to acquire an out-of-state income withholding order.
The latter can help compel the employer of the non-custodial parent to withhold child or spousal support from their monthly paychecks. When you get a certified copy of your UIFSA endorsement, the copy will comprise a stamp or a seal, authenticating the legitimacy of the document.
Once you get hold of the out-of-state child support documentation, it is important to understand the jurisdiction you want to register in. However, if you’re living in Virginia with your child where the UIFSA law is implemented, you can file for enforcement registration with the district clerk of Virginia.
Child Support Modification and Enforcement Across State Lines
For parents who are owed child support payments and are aiming to leverage the advantages of UIFSA, it is important to first locate the non-custodial parent and authenticate whether the region of the US they live in has indeed implemented the Uniform Interstate Family Support legislation. However, a majority of the states across the country have implemented the UIFSA law.
As soon as the custodial parent locates the non-custodial parent and confirms the city they are living in has UIFSA, the parent owed the child support payments can provide the circuit court of the area the non-custodial parent is living in to start the support enforcement and modification process.
Potential Challenges to Keep in Mind When Pursuing a UIFSA Proceeding
While the Uniform Interstate Family Support Act is an excellent way of securing legal and executive help in ensuring the obligor pays you child or spousal support, it is just as vital to consider some facts that may potentially throw a wrench in your proceedings, especially when it comes to the implementation stage.
How? Well, imagine, for example, that the non-custodial parent proves that they can’t possibly make support payments due to a financial crunch. Or what if they prove that they had to switch states to find better employment opportunities but thus far have not been able to?
If these problems arise in your UIFSA case, it will fall on the circuit courts of the non-custodial state to evaluate and investigate the claims made by the obligor to arrive at a conclusive decision.
There’s no doubt the foundations of any marriage can be put to an extreme test when one spouse is incarcerated. And, understandably, both parties may have some difficult situations to face. However, if you’re thinking about filing for divorce against an incarcerated spouse, you certainly can, but it’s not as straightforward as it is often cut out to be.
Divorcing a spouse that’s been in prison for a long time will come with its unique set of challenges and complexities. It’s quite different than getting a traditional divorce. Moreover, keep in mind that you will need to hire the services of an experienced divorce attorney in this niche as they can help you navigate the legalities and formalities required.
Why is Getting a Divorce from an Imprisoned Spouse Difficult?
The reason why divorcing an inmate will come with a set of complications is primarily that your spouse is behind bars. They can’t fully involve themselves in the case. This is why you may have to wait for a considerably longer period to schedule important meetings between you and your spouse.
In these meetings, you will also need to discuss child custody and visitation issues, the division of marital assets, alimony, child support, etc. In addition, your spouse may also lean towards contested divorce if they think they are not being represented enough.
A List of Changes to Expect
Here’s a list of important changes you should expect when you’re filing for divorce against an incarcerated spouse:
- The spouse in prison will have limited access to fully participate in the proceedings during the divorce case. This may potentially make it harder for you to come to an agreeable settlement.
- You may also contend with the possibility that your spouse will bring up additional obstacles when it comes to dividing marital assets, such as a retirement account.
- Child visitation and custody can also be a bit of an issue especially if one parent is incarcerated. However, the circuit court will decide what’s best for the child.
Understanding the Involvement of Legal Guardians During Your Divorce Proceedings
Another vital factor to keep in mind is that the Commonwealth of Virginia labels imprisoned spouses as being disabled. So, this means the incarcerated husband/wife will have the right to a legal guardian ad litem (GAL). This is a court-mandated attorney that presides over the best interests of the incarcerated individual. They will lead the divorce case on your spouse’s behalf and will take decisions based on their best interests.
However, it is equally important to understand that if your spouse opts for a GAL, you may potentially be liable to pay for their legal representation out-of-pocket. But there are some exceptions to this law, such as:
- You won’t have to pay if your spouse was sent to prison after your marriage.
- Your spouse was found guilty of crimes against your kids.
- Facing 12 months or more in prison time.
After the court appoints a GAL for your spouse, only then can the divorce proceedings continue. Moreover, the guardian ad litem will be the point of contact between you, your legal team, and your spouse.
Claiming an At-Fault Case As Grounds for Divorce
Virginia courts also accept at-fault cases. This means that a spouse has the right to cite a valid reason to explain how the marriage is a failure to avoid or steer clear of other legal divorce requirements, for example, living away from the spouse for more than 1 year. In light of this, here are some components that you may be able to use to cite an at-fault case when your spouse is behind bars.
- Your spouse was found guilty of a felony after your marriage with them.
- Your spouse has been sent to prison for 12 months or more than that.
- You stopped living with your spouse after they had been sent to prison.
However, you need to make sure you are eligible for an at-fault case. This is why you should always consult with an experienced divorce attorney.
Informing Your Spouse Who is in Prison
If your spouse is convicted and sent to prison, and you want to file for divorce, this means you will have to inform your incarcerated spouse. However, in most cases, spouses that have been sent to jail sign a waiver of service. This is where the place they are incarcerated steps in.
Some Reasons You Can File for Divorce in Virginia
Cruelty towards your children, domestic abuse, adultery, and convicted felonies that carry a minimum sentence of one year are all reasons you can use to file for an at-fault divorce case. However, if you’ve been living separately from the incarcerated spouse for one year (or six months) if you don’t have a minor kid and have a property settlement agreement, you will not be able to use an at-fault basis.
In addition, if your incarcerated spouse is sent to prison for a minimum of 12 months or more than one year, you have the right to file for a divorce in Virginia. This also means that you potentially have an uncontested divorce because the courts will give your more power compared to the inmate.
Does Your Jailed Spouse Have to Attend Hearings?
In a lot of cases, the incarcerated spouse does have the right to appear for divorce hearings. If they aren’t mandated to attend the meeting based on their incarceration, their legal guardian ad litem will attend the meeting in their stead.
Do Inmates Have to Make Child Support Payments?
If you have children with your spouse (who is now in prison), they may potentially be court-mandated to pay you child support. The court will either ask them to pay the necessary amount using external resources (if your spouse has any) or manage to pay child support from prison.
Bottom Line
So there you have it. A comprehensive guide to understanding the process of divorcing an incarcerated spouse. Although divorcing a spouse who is in prison does come with its list of complex issues, understand that hiring the right divorce attorney will make the ride smoother and easier for you.
Why You Should Have a Will in Virginia
Tomorrow is never guaranteed. This is what makes having a will even more important. You’ve worked hard for what you have today. And it would be a shame to leave everything in turmoil and shroud your loved ones in uncertainty after you pass.
A last will is a legal document that has step-by-step, authenticated and notarized instructions on how you wish to have your estate planning distributed after you pass away. A last will and testament make it easier for your heirs to plan and distribute your estate properly and legally with peace of mind.
When drafting your last will and testament in Virginia, it is wise to consult an experienced legal professional or an attorney who will function as your point-man. Because the legalities surrounding a last will and testament can potentially be complex, your legal representative will be able to help you navigate the process.
The Benefits of Having a Will in Virginia
You Can Decide and Appoint a Legal Guardian for your Minor Children
A revocable living trust or deed will can help make it easier for you to appoint a legal guardian for your children (minors) in the event of your death. If you don’t, then the courts will attach a legal caretaker of your children.
Streamline the Probate Process
Probate is a series of legal phases your last will and testament will go through to become valid.
You Can Potentially Reduce your Estate Taxes
By legally drafting your last will and testament, you will lawfully be entitled to consider numerous strategies that can help lower your estate taxes.
Powerful Reasons to Have a Trust in Virginia
Like a last will and testament, a revocable living trust or “trust” for short, provides you with numerous estate planning alternatives you can utilize to legally and proficiently allot your assets to rightful heirs. But what’s great about developing a trust in Virginia is that they offer a diverse range of advantages that a traditional will and testament don’t.
So, in some ways, preparing a trust could potentially be ideal compared to a will, allowing you (as a Virginian) to distribute your estate to the stipulated beneficiaries after you pass away.
Top Reasons to Have a Trust in Virginia
- One of the best reasons to have trust in the state of Virginia is that they aren’t subject to the probate phase. Probate is a lawful, lengthy, and in some cases, cost-intensive process that may take a long while to transfer your estate to your heirs.
- Trusts can be a great way to instil a sense of privacy. You have to understand that a probate is accessible to public viewing. This means third-party entities may be able to view your assets and could potentially commit fraud. A trust, on the other hand, is a completely private affair.
- Trusts give minor children the right to access your estate and assets without any legal intervention. In contrast, leaving assets to your children in a will is subject to court oversight.
- Trusts can also be a great way of transferring your assets to the handicapped members of your family, who will also be entitled to government benefits, such as receiving Social Security benefits and/or Medicaid.
Estate planning is an essential step for individuals to ensure that their assets are distributed according to their wishes after they pass away. For veterans, there are unique circumstances and considerations that should be considered when creating an estate plan. Some of these special considerations that veterans should keep in mind to ensure a comprehensive and tailored estate plan are:
- Military Benefits: One of the significant considerations for veterans is their eligibility for various military benefits. These benefits may include pensions, disability compensation, healthcare, and survivor benefits. It is crucial to understand how these benefits may impact your estate and beneficiaries, as well as any specific requirements or limitations associated with them.
- VA Burial Benefits: Veterans are often eligible for burial benefits through the Department of Veterans Affairs (VA). These benefits may include burial in a national cemetery, a burial flag, and a headstone or marker. When planning your estate, consider if you have any preferences regarding your final resting place and inform your loved ones about these benefits and your wishes.
- Special Needs Planning: If you or a family member has special needs resulting from military service, it is essential to incorporate special needs planning into your estate plan. Special needs trusts can be established to provide for the ongoing care and support of individuals with disabilities without impacting their eligibility for government assistance programs.
- Military Life Insurance: Many veterans hold life insurance policies obtained during their military service. These policies may have unique provisions or benefits associated with them. It is important to review and update your life insurance policies as part of your estate planning process to ensure they align with your current wishes and circumstances.
- Appointing a Healthcare Proxy: Veterans may have specific healthcare considerations due to service-related injuries or conditions. It is important to appoint a trusted healthcare proxy who can make medical decisions on your behalf if you become incapacitated. Discuss your healthcare preferences and any service-related health issues with your proxy to ensure they are well-informed and prepared to act in your best interest.
- Military Memorabilia and Personal Effects: Veterans often possess sentimental military memorabilia and personal effects that hold significant value to them and their loved ones. Consider including specific instructions in your estate plan regarding the distribution or preservation of these items. You may want to designate a family member or organization that will honor and preserve these artifacts to honor your military service.
- Communication and Documentation: Ensure that your loved ones are aware of your estate plan and its provisions. Share important information, such as the location of documents, account details, and contact information for professionals involved in the estate planning process. Clear communication and proper documentation can help minimize confusion and ensure your wishes are carried out smoothly.
As a veteran, there are several unique considerations to keep in mind when preparing your estate plan. Understanding your military benefits, incorporating special needs planning, and addressing specific issues related to military service can help ensure that your estate plan aligns with your wishes and properly addresses your circumstances. Consulting with an experienced estate planning attorney like The Law Office of Miles Franklin, who understands the complexities of veteran benefits can provide valuable guidance throughout the process. By taking these special considerations into account, you can create a comprehensive estate plan that honors your service and provides for your loved ones.