Addressing Frequently Asked Legal Questions And Concerns
- Page 3
Do I have to allow visitation if I am not receiving child support?
Yes. If your child’s other parent is not paying child support, you may not withhold visitation. On the flip side, if your child’s other parent won’t let you see your children, do not withhold child support. Either instance could lead to jail or fines. Make sure you document any and all interactions concerning the issues. If the two of you can’t resolve your problems, contact your lawyer to discuss your options.
My child was injured in a car accident. Can I file a lawsuit on her behalf?
Yes. Either parent may sue for the child. However, there are particular requirements for how the lawsuit must be worded, and failure to comply with those requirements can be fatal to the case.
Importantly, the procedure for filing suit to recover for medical bills incurred by the parent or parents can be different from the action for injuries suffered by the child. Typically these two actions are combined in one lawsuit but not always.
Finally, different statutes of limitation can apply to each action—generally two years after the child reaches the age of 18 (the child’s 20th birthday) for the injury claim but only five years after the accident for the parent’s recovery of incurred medical bills if the parent pursues that claim separately. If this sounds confusing, it can be. For this reason, it is highly recommended that anyone pursuing a claim on behalf of an injured child be represented by an experienced attorney. Consult with an attorney early on in the process to avoid potential pitfalls.
Is the time in which you can sue (“statute of limitations (SOL)”) for personal injury different for children than adults?
Yes. The usual SOL for personal injury matters is 2 years. For children, however, unless they have been legally emancipated, they have until they turn 20 to file a personal injury claim (age 18 when they become an adult and then the usual 2 years added to that). If they were already emancipated at the time of the accident, they have two years from the date of injury. If the injury happened before emancipation, they have two years from the date of their emancipation to file a claim.
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 right to Custody or Visitation?
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.