Addressing Frequently Asked Legal Questions And Concerns

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  • What is a credit report?

    Credit Reports

    Although this term is widely used, the law that governs the reporting of credit matters, the Fair Credit Reporting Act (“FCRA”) actually doesn’t use the term at all. It discusses “consumer reports” and “consumer disclosures.” 

    “Consumer reports” are any written, oral, or other communication of any information by a consumer reporting agency (“CRA”)(such as Equifax, Experian, or TransUnion - the three big players) which compiles and generates reports on consumer’s credit-bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or part for the purpose of service as a factor in establishing your eligibility for:

    (A) credit or insurance to be used primarily for personal, family, or household purposes; 

    (B) employment purposes; or 

    (C) any other purposes authorized under [other parts of the FCRA] [1]


    "Consumer disclosures” are the disclosures of the information in your file at the CRA. 

    The difference is important to the extent of the responsibilities the CRA has under the FCRA. A consumer report is communicated to a third party (such as when you apply for a credit card or a home loan) and under the law, the CRA has a duty of “maximum possible accuracy” of the information contained in those reports.[2]  A consumer disclosure, however, does not have this standard, as it is not communicated to anyone other than you (such as when you contact a CRA to get a copy of your “credit report”). Instead, a CRA’s responsibilities for disclosures come when you dispute the accuracy of something in the disclosure.
     

  • How do I get information about my credit information held by the credit reporting agencies (“CRAs”)?

    You have the right to get your credit information from the three national CRAs (Equifax, TransUnion, and Experian) once every 12 months at no charge. Because it is best to obtain the cleanest report from the CRAs, as well as to document your request should future litigation be necessary, we recommend you mail in your request instead of making the request over the phone or through the internet (both of which are permissible to obtain your reports). The form to fill out and mail is here.  You also have the right to obtain your credit information when you have been denied credit by someone. When you are denied credit based on a credit check, the company denying the credit must, under the Fair Credit Reporting Act (“FCRA”) provide you with notice that the adverse action was based in part on the information contained in the report given by the CRA (whichever the company used) and the consumer has the right to request a free copy of that report from the CRA within 60 days of denial.[1] 

    Requesting your credit information

  • If there is incorrect information about my credit on my report, how do I fix it?

    Inaccurate Credit InformationUnder the law that governs the reporting of credit matters, the Fair Credit Reporting Act (“FCRA”), the credit reporting agencies (“CRA”), which are the businesses that gather and report on consumer’s credit information, there is the process to dispute inaccuracies.[1] 

    You notify the CRA that information about your credit is incorrect (preferably in writing) and then the CRA must undertake what is referred to as a “reinvestigation” (the CRA contacting the furnisher of the information to determine if the reported credit information is, in fact, accurate). This process is as follows:

    1. The CRA communicates the dispute and “all relevant information” received from you to the furnisher within 5 business days of receiving the information. The requirement to communicate “all relevant information” is where most CRAs fail to abide by the FCRA in that the systems that are normally used turns your dispute (no matter how detailed or how many supporting documents are provided) into a two-digit code which it transmits to the furnishers (such as “02 disputes payment history”). This failure often leads to the information not being properly corrected (as the furnisher cannot determine from a two digit code the true nature of the issue) and also opens the CRA and possibly the furnisher to liability under the FCRA.
    2. The reinvestigation is to be completed within 30 days (or up to 45 days if you send additional information to the CRA during the initial 30 day period).
    3. The reinvestigation is to be “reasonable” under the FCRA, which is again where the CRAs usually fall short of the law’s requirements. Traditionally, the CRAs’ position has been that simply forwarding your dispute to the furnishers of the information is enough and they can report the credit information if that furnisher “verifies” it. This is not correct under the FCRA, however, as the law requires the CRA to conduct an independent investigation of the information rather than just forward along what they receive from you.

    If the furnisher reports that the information is not correct, the CRA is to remove the information from the consumer’s file. The CRA is also to remove the information if the information “cannot be verified.”[2]  Unfortunately, often times unless it is clear that the information is not accurate (such as reported as such by the furnisher) the information remains in your file in contravention of the FCRA.

  • What are my remedies if a credit reporting agency doesn't remove inaccurate information from my credit file?

    Credit report remedies

    If a credit reporting agency (“CRA”) fails to remove inaccurate information from your credit file, the Fair Credit Reporting Act (“FCRA”) allows you to file a lawsuit against the CRA. A lawsuit against the CRA will be filed in federal court (because the matter concerns a federal law - the FCRA). In addition to seeking the credit file be corrected, you can seek actual damages (such as a loss of funds due to the mistake if it involved financing, for instance) and reasonable attorney’s fees for negligent (i.e. accidental) violations.[1]  If the violation of the FCRA is found to be willful, the Court can award actual damages or statutory damages from $100 to $1,000 per violation and punitive damages (which are damages the Court awards to punish the defendant(s) or to deter other people to take such actions).[2]

    [2] 15 U.S.C. §1681n.

     

  • What do I do if my identity has been stolen?

    Identity theft is a serious matter. I have written an in-depth article outlining the problem and the steps someone should take once this has occurred.

    Identity Theft

  • How does our property get divided?

    The easiest way to divide up property, as with all aspects of a divorce, is to enter into a Separation Agreement wherein the parties have agreed as to the disposition of the property. Barring such a document, the Court will divide up the parties’ property (called “equitable distribution”) under the guidelines established by the Code of Virginia. This is a complicated process wherein the Court determines the nature of the each piece of property (separate, marital, or a hybrid of both) and then considers 11 factors set out by the Code of Virginia in dividing up that property which is marital in nature (separate property is awarded to the party to whom it belongs).[1]  These factors are: 

    1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
    2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
    3. The duration of the marriage;
    4. The ages and physical and mental condition of the parties;
    5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;
    6. How and when specific items of such marital property were acquired;
    7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
    8. The liquid or nonliquid character of all marital property;
    9. The tax consequences to each party;
    10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
    11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

    As indicated, this is often very complex because there is a substantial body of law discussing the classification of property as separate, marital, or hybrid, and, of course, the factors themselves have been applied in a wide-variety of ways.


     
    Property and divorce

  • What about the custody of our children?

    First, there are two types of custody: Legal and Physical. Legal custody is generally the right of a parent to have input as to the educational, religious, and medical decisions regarding the children. Physical custody concerns the actual physical care of the children (i.e. where they live). 

    In most situations, parents are awarded joint legal custody wherein both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent.[1]   Sole legal custody is usually only awarded when one parent is wholly absent from the children’s life or is seriously detrimental to the children; however, if so awarded, the parent with sole legal custody will have the only say in raising the child. 

    As to physical custody, the Code defines it as either joint or sole; however, Courts typically further define it as four types: (1) Sole; (2) Primary; (3) Shared or Joint; and (4) Split. Sole physical custody is similar to sole legal custody – the parent with sole custody has total custody of the child. Primary physical custody is where the children reside with one parent and the other parent receives less than 90 days visitation a year. This designation primarily affects child support calculations. Shared or Joint custody is where the parties share time with the children more than 90 days a year (varying from 91 days to 50/50). Again, this affects child support calculations. Lastly, there is Split Custody which is where parents split custody of multiple children.

  • What if the parties don’t agree as to custody/visitation?

    Disagreement over child custody If the parties cannot agree as to custody and/or visitation, the Court must determine what is in the children’s best interests (“best interests” is the standard which the Court must follow when determining these issues relating to children). The Code of Virginia provides ten factors that the Court must apply to determine this.[1]  These are: 

    1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;
    2. The age and physical and mental condition of each parent;
    3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
    4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
    5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
    6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
    7. The relative willingness and demonstrated the ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
    8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference;
    9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
    10. Such other factors as the court deems necessary and proper to the determination.

     

  • How is spousal support determined?

    Spousal Support

    If the parties agree on a spousal support figure and duration, and that agreement is contained in a Separation Agreement, then that document will control spousal support between the parties (which, absent an unusual issue, the Court cannot alter as it is a contract between the parties). Absent an agreement between the parties, the issue of spousal support is controlled by the Code of Virginia. The Court will consider the circumstances and factors which contributed to the dissolution of the marriage and in determining the nature, amount, and duration of an award, will consider 13 factors under 20-107.1
     

    1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
    2. The standard of living established during the marriage;
    3. The duration of the marriage;
    4. The age and physical and mental condition of the parties and any special circumstances of the family;
    5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
    6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
    7. The property interests of the parties, both real and personal, tangible and intangible;
    8. The provisions made with regard to the marital property under § 20-107.3;
    9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
    10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
    11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
    12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
    13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

  • How is child support determined?

    Child Support Negotiation

    If the parties cannot agree upon an amount for child support, the Code of Virginia has a presumptive formula for determining child support to be paid between the parties.[1]  This formula is to be used by the Court unless there is evidence for deviation. If there is a sole or primary custody arrangement (the non-custodial parent has less than 90 days visitation a year), the Court utilizes a chart provided in the Code (with the two parents total gross income and the number of children) to come up with a basic figure of total support, which is then modified with health insurance costs for the children, work-related daycare costs, and a few other factors. 

    If the parties have a shared custody arrangement (the non-custodial parent has more than 90 days visitation a year), the Court utilizes a different formula that takes into account each day above 90 for the non-custodial parent. 
    As mentioned above, the Court may deviate from the formula-derived support if finds that the application of the guideline formula would be unjust or inappropriate in the particular case. The Court must consider certain factors in making this deviation[2]:

    1. Actual monetary support for other family members or former family members;
    2. Arrangements regarding custody of the children, including the cost of visitation travel;
    3. Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to the custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party's employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party;
    4. Debts of either party arising during the marriage for the benefit of the child;
    5. Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;
    6. Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;
    7. Any special needs of a child resulting from any physical, emotional, or medical condition;
    8. Independent financial resources of the child or children;
    9. Standard of living for the child or children established during the marriage;
    10. Earning capacity, obligations, financial resources, and special needs of each parent;
    11. Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;
    12. Tax consequences to the parties including claims for exemptions, child tax credit, and child care credit for dependent children;
    13. A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and
    14. Such other factors as are necessary to consider the equities for the parents and children.