Addressing Frequently Asked Legal Questions And Concerns
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Can we determine custody or child support in the prenuptial agreement?
Not advisable. The courts always have the authority to determine custody and child support matters and will ultimately determine what is in the best interest of the children. If you were to define custody or child support matters in a prenup, circumstances will necessarily be different should you ever separate due to the passage of time. Therefore, the terms in any prenup would almost certainly not be enforced by a court (as courts can alter these terms even in a separation agreement if the parties later change their mind).
As a grandparent, do I have any legal Grandparent's rights?
Not inherently. This can be complicated because in Virginia there isn’t a specific statute concerning grandparents’ rights.
The child custody and visitation statutes refer to parents and “persons with a legitimate interest”, which can include grandparents, step-grandparents, stepparents, former stepparents, blood relatives, and family members. The courts must consider what is in the best interest of the children and as between parents, the court will apply the ten factors in Va. Code Sec. 20-124.3 to determine visitation rights. Parents trump grandparents, however, and if both parents are against grandparent visitation, then the grandparents have to show more than best interests of the children – they have to show actual harm would come to the children absent them having visitation. If one parent is for the grandparent visitation, however, then the court uses the usual best interests’ standard.
Can a prenuptial agreement be deemed void?
Yes. There are a few things that could void your prenuptial agreement: (1) If the agreement was not signed voluntarily or (2) If the agreement was unconscionable when signed (i.e. grossly unfair – though this has to be more than just lopsided; Virginia law makes it very difficult to find that an agreement is unconscionable) and, before signing, the person wasn’t provided a fair and reasonable disclosure of the property or financial obligations of the other party (assuming that this disclosure wasn’t knowingly and voluntarily waived in writing).
Can a Separation Agreement or Court Order stop my spouse from moving out of state with my children?
Yes. You can always agree to insert a provision into a Separation Agreement limiting the removal of your children from their residential state if that is a concern. If you are in a divorce action and can’t reach an agreement, you can seek relief from the Court on this issue and request a temporary order to protect your rights. The federal Parental Kidnapping Prevention Act was enacted to establish national standards for the enforcement of child custody matters. So, if your spouse takes your children out of state and you have something in place regarding this issue, the other state will honor the terms agreed to in Virginia.
Should I have a prenuptial agreement?
It depends. Although we enter into marriage with the expectation it will be forever, unfortunately, divorce happens. A prenuptial agreement (“prenup”) addresses financial issues and protects the interests of both parties. There are many reasons to have a prenup, including if one spouse has a significantly greater financial wealth or income than the other because the division of property and financial assets can be addressed. If you own a business, having a prenup will ensure that your ex-spouse doesn’t end up owning a share of it. If your spouse comes with significant debt, you can also agree that you won’t be responsible for same. A prenup can ensure that certain properties or inheritances/heirlooms stay in the family. For a second marriage, you may wish to set aside certain assets or provide for children from your first marriage. A prenup cannot address personal preferences, though, such as chore assignments or where to spend holidays.
I was denied a credit card recently due to something on my credit report. Can I get a copy of my credit report without paying for it?
Yes. While you are entitled to a free report every year from the three major credit agencies, you are also entitled to a free report when you receive a credit, employment, or insurance denial letter. You should receive a notice of this right after the denial. You must ask the reporting agency (as noted on your denial) within 60 days of the notice.
Should I take photos of my car accident?
Yes! If it is possible to safely get photographs, we highly recommend it. Photos can be used to help establish fault and can also be used as evidence of injuries or damage. If possible, get pictures of the entire accident scene from multiple angles, including damage to cars or property (fences, bushes, etc), skid marks on the road, traffic signs, any visible body injuries (bruises, scrapes), and anything you think might have contributed to the accident.
Do I have to pay for my credit reports every time I request them?
No. You are entitled to a free annual credit report from each of the three big credit agencies (Experian, TransUnion, and Equifax) every 12 months. You are also entitled to a free report when you receive adverse credit decisions (e.g. denied credit, employment, or home rental) that were based on your credit report information. It’s best to request your free annual credit report with a written request. You can find the form here.
Is there any difference between the big three credit reports? (Experian, TransUnion and Equifax)
Yes. While the majority of information may be reported on all three agencies’ reports, there can be information damaging to your score on one that is not on another, as some creditors report to specific agencies and/or one of the agencies may pick something up on public records the others miss (or get wrong where should be different). It’s best to always get all three and review each thoroughly to determine if there are errors or fraudulent accounts. Even simple errors like previous addresses or employers can cause potential issues for you
Do I have to pay child support if the other parent won’t let me see the kids?
Yes. Child support and visitation are separate issues. If the other parent won’t allow visitation, the courts are able to intervene. Contact your lawyer.