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Family Law

Allison Anna Tait *

Another year of family law activity in Virginia brought both new legislation, which will likely have long-term impacts, as well as a new set of judicial opinions that will bring changes to the Virginia rules. The terrain covered in the legislation and opinions varies, but it includes certain fixtures such as marriage and divorce requirements, equitable distribution, spousal and child support, and child custody. This brief overview addresses all these areas, beginning with the legislative changes and then moving to the courts.

* Assistant Professor, University of Richmond School of Law. Thanks to the University of Richmond Law Review and Brian Melnyk for inviting me to write this overview and to the staff for their excellent editorial work.

Taxation

Craig D. Bell *

Emily J.S. Winbigler **

This article reviews significant recent developments in the laws affecting Virginia state and local taxation. Each section covers legislative activity, judicial decisions, and selected opinions or pronouncements from the Virginia Tax Department (the “Tax Department”) and the Virginia Attorney General over the past year.

* Partner, McGuireWoods LLP, Richmond, Virginia. LL.M., 1986, Marshall-Wythe School of Law, College of William & Mary; J.D., 1983, State University of New York at Buffalo; M.B.A., 1980, Syracuse University; B.S., 1979, Syracuse University. Mr. Bell is the immediate past chair of McGuireWoods Tax and Employee Benefits Department, and practices primarily in the areas of state and local taxation, and civil and criminal tax litigation. He is a Fellow of the American College of Tax Counsel, a Fellow of the Virginia Law Foundation, a Fellow of the American Bar Foundation, a Master of the J. Edgar Murdock Inn of Court (United States Tax Court), an adjunct professor of tax law at the College of William & Mary School of Law, and a past chair of both the Tax and Military Law sections of the Virginia State Bar and the Tax Section of the Virginia Bar Association. Mr. Bell is an emeritus director of The Community Tax Law Project, a nonprofit pro bono provider of tax law services for the working poor, and is its recipient of the Lifetime Pro Bono Achievement Award for his pro bono work in representing hundreds of Virginians before the IRS and in United States Tax Court and federal district court, as well as developing and training many lawyers in the area of federal tax law to expand pro bono tax representation for low-income taxpayers.

** Associate, McGuireWoods LLP, Richmond, Virginia. J.D., 2009, University of Iowa, Order of the Coif; B.A., 2004, College of William & Mary.

Wills, Trusts, And Estates

J. William Gray, Jr. *

Katherine E. Ramsey **

The Supreme Court of Virginia has handed down seven recent decisions addressing the authority of an agent to change the principal’s estate plan, legal malpractice claims in estate planning, rights of incapacitated adults, limits of the constructive trust doctrine, effects of a reversionary clause in a deed, ownership of an engagement ring, and proof of undue influence. The 2017 Virginia General Assembly clarified rules on legal malpractice and tenancies by the entireties, adopted the Uniform Trust Decanting Act and the Uniform Fiduciary Access to Digital Assets Act, and expanded provisions governing estate administration, life insurance, and advance medical directives. Other legislation affecting wills, trusts, and estates included clarifications and technical corrections relating to augmented estate claims, non-exoneration of encumbered property, administration procedures, life insurance, adult financial exploitation, death certificate amendments, and spousal exemptions from real estate tax.

* Partner, McGuireWoods LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., B.A., 1973, Rutgers University.

** Partner, Virginia Estate & Trust Law PLC, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.

A Primer On ABLE Accounts

Christopher T. McGee *

G. Alisa Ferguson **

It has been called the most significant piece of legislation benefiting individuals with disabilities since the 1990 passage of the Americans with Disabilities Act. The Stephen Beck Jr., Achieving a Better Life Experience (“ABLE”) Act created a tax-advantaged savings account for individuals with eligible disabilities that permits, for the first time, these individuals and their families to save for their daily and future expenses in meaningful amounts without affecting their eligibility for Supplemental Security Income, Medicaid, and other public benefits. The ABLE Act is local in its origins and its passage in December 2014 was profoundly bittersweet.

* General Counsel, Virginia529. J.D., 1993, University of Richmond School of Law; B.A., 1985, Hampden-Sydney College.

** Associate Counsel, Virginia529. J.D., 2008, University of Richmond School of Law; B.S., 2000, James Madison University.

Improper Delegation Of Judicial Authority In Child Custody Cases: Finally Overturned

Dale Margolin Cecka *

“The appellate courts of this Commonwealth are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon a reversible error.”

These words of Judge Humphreys, denying a 2016 child custody appeal, are cogent. Yet four months later, in another appeal, Judge Humphreys joined a unanimous decision overturning a common provision in a custody order. In Bonhotel v. Watts, the Court of Appeals of Virginia held that judges cannot delegate judicial decision making power in child custody cases to outside professionals. This sounds obvious, but such delegation is actually ordered all the time. In final orders, Virginia’s trial court judges frequently give discretion to guardians ad litem (“GALs”), as well as therapeutic counselors, to determine issues such as the frequency, length, and substance of parent-child visitation.

* Clinical Professor of Law and Director of the Jeanette Family Law Clinic, University of Richmond School of Law, Richmond, Virginia. J.D., 2004, Columbia Law School; B.A., 1999, Stanford University. The author would like to thank Mark Branca and Jenni Lyman for their invaluable research assistance. The author has practiced domestic relations and child welfare law for over fourteen years in trial courts in Virginia and New York. Upon graduation, Professor Cecka was selected as a Skadden Fellow at the Legal Aid Society, representing children in foster care in all five boroughs of New York City, and later, as a Teaching Fellow and the Director of the Child Advocacy Clinic at St. John’s School of Law which serves Queens and Long Island. In 2008, Professor Cecka was appointed by the University of Richmond School of Law to create and launch the Family Law Clinic, which was the first, and still only, pro bono service for litigants in central Virginia on contested domestic relations matters. Under Professor Cecka’s supervision, third-year law students try cases in the Juvenile and Domestic Relations Courts and the Circuit Courts of Richmond, Henrico, Chesterfield, Petersburg, and Hanover. Professor Cecka is also Of Counsel in domestic relations matters to the law firm Winslow and McCurry in Chesterfield, Virginia, and has made appearances in Clarke and York Counties in that capacity.

The Evolution Of E-Commerce In Virginia Real Property Transactions

Ronald D. Wiley, Jr. *

The General Assembly amended section 17.1-258.3:1 of the Virginia Code in 2017 to provide that “[a]ny clerk of a circuit court with an electronic filing system established in accordance with this section may charge a fee not to exceed $5 per instrument for every land record filed by paper.” The amendment also deleted the five-dollar fee that Code section previously authorized for electronic recordation of any instrument. The obvious purpose of the amendment is to encourage electronic filing of land records where possible.

* Underwriting Counsel, Old Republic Title Insurance Company. J.D., 1983, University of Richmond School of Law; Virginia State Bar, Real Property Section, Board of Governors, Treasurer. Since 2013, Mr. Wiley has assisted in course instruction on real estate transactions and financing at the University of Richmond School of Law.

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