This blog is the fourth in a series covering the Divorce Process. Specifically, this blog looks at Pendente lite hearings; what they are, the purpose in the divorce, and what a party should expect at the hearing . If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County, please contact Waltrip Firm, PC and schedule a free consultation.
Pendente lite is latin for awaiting the litigation. It is one of the most common motions/hearings in a divorce case and often times can establish the tone and strategy for the remaining litigation. I will refer to the Pendente lite hearing for the rest of this article as the PL Hearing.
What is the Pendente Lite Hearing & What is its purpose?
Pendente lite is latin for "awaiting the litigation." It is one of the most common motions/hearings in a divorce case and often times can establish the tone and strategy for the remaining litigation. The hearing is made by motion of one or both parties, and scheduled with the Court. The Court will hear evidence and then via a Pendente lite Order establish certain parameters during the divorce litigation. Often times these parameters will include spousal & child support, possession of a vehicle(s), the marital home, freezing or liquidating of bank and investment accounts, or even the payment of attorney's fees. The Court can also determine custody and visitation at the hearing. To put it simply, the purpose of the Pendente lite hearing is to establish who will have what and who will pay for what during the divorce process.
What to expect at a PL Hearing?
In most jurisdictions, at least in Virginia, the Court will take testimony from both parties at the hearing. Concerning support, the court will almost always use guidelines to determine what amount of support will be awarded. These guidelines take into consideration the gross income of the parties, whether one party is making payments on a mortgage, insurance, car payments, health insurance, and/or any family debt.
To determine things such as possession of the marital home, or custody & visitation, the Judge will take testimony regarding the underlying facts of the divorce, but this maybe limited to the testimony of the parties concerning who is the primary care-giver and who is the primary financial provider.
It is important to understand that a ruling at a Pendente lite hearing is not the final order of the divorce. Many times the amount of support will change, as well as the custody and visitation arrangement when the divorce is finalized. However, it is important to note that in most jurisdictions the Judge hearing testimony at the hearing may very well be the Judge at the trial of the Divorce and it is never to early to begin setting the theme and stage for arguments to be made at trial.
How long is the hearing?
The length of a Pendente lite hearing can vary. If the parties have worked out most of the issues it could be a short as fifteen minutes. If there are a litany of issues, then the hearing could last an hour to an hour and a half. Any party should understand that Judge's do not often want to expend long amounts of time at these hearings, but will take the appropriate amount of testimony to make the determinations requested.
Once the Judge rules on the variety of issues an order will be entered by the court. Although there is no complete bar to amending this order during the divorce, a party is required to demonstrate a material change in circumstances to overturn the original order. During a divorce this rarely happens, but may happen under circumstances where a party loses their employment, children of age change custody, or homes are foreclosed or sold by the parties.
Pendente lite hearings are an important part of the divorce process. The purpose is to establish parameters such as support, and possession of assets during the divorce litigation. Although not a final order, the Pendente lite hearing is a good opportunity to establish themes to be argued at the trial of the divorce. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County please contact Waltrip Firm, PC for a free consultation.
Showing posts with label york county. Show all posts
Showing posts with label york county. Show all posts
Sunday, February 2, 2014
Wednesday, January 29, 2014
The Divorce Process - Discovery
This blog is the third in a series covering the Divorce Process. Specifically, this blog looks at Discovery; what is Discovery, its purpose in the divorce and a few of the common types of discovery filings used in divorce proceedings. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County, and you are required to answer Discovery, please contact my office and schedule a free consultation.
What is Discovery?
Discovery is a general term that includes a variety of filings to obtain information and documentation from the opposing party. The most common filings are Requests for Interrogatories and Productions of Documents. Discovery though may also include Requests for Admissions, subpoenas and releases for private documentation. The purpose of discovery in a divorce is to gather information about the other party, the factual basis for the grounds of divorce and finally information on the equitable assets of the marriage. When combined this assists the parties in narrowing the issues in the divorce.
Interrogatories & Production of Documents Interrogatories are a series of questions which the opposing party must answer under oath. Typically these include questions about the financial and equitable matters between the parties, but may also include questions concerning the grounds for divorce. Requests for Production of Documents are a request for the opposing party to produce documents either relating to the Interrogatories or other relevant documents to the Divorce.
Requests for Admissions Requests for admissions are also useful in a divorce. A Request for Admissions is simply a list of true or false questions that the opposing party must answer under oath. Like most areas of discovery, requests for admissions allow the parties to narrow the issues in a relatively inexpensive means.
Subpoena Duces Tecum A subpoena duces tecum, or subpoena for production of evidence, is another means of discovery that can be used during a divorce. Virginia law allows attorneys to issue subpoenas without the Court's permission; however, an opposing party may object through a Motion to Quash, and a hearing must be held to determine whether the party whom the subpoena is issued against must produce the documents.
Releases Finally, Releases. These are simply authorizations signed by the opposing party that allow the party requesting the documents to go directly to a source, using the release, to obtain what maybe privileged documentation. This can sometimes result in useful information regarding both equitable matters in the divorce as well as the fault based grounds for the divorce.
Discovery is an important part of the divorce process. It's purpose is to gather information regarding equitable assets and grounds of divorce. It allows a party to narrow the issues in the divorce. There are a variety of discovery filings in a divorce, the most common are request for interrogatories and production of documents. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County please contact Waltrip Firm, PC for a free consultation.
What is Discovery?
Discovery is a general term that includes a variety of filings to obtain information and documentation from the opposing party. The most common filings are Requests for Interrogatories and Productions of Documents. Discovery though may also include Requests for Admissions, subpoenas and releases for private documentation. The purpose of discovery in a divorce is to gather information about the other party, the factual basis for the grounds of divorce and finally information on the equitable assets of the marriage. When combined this assists the parties in narrowing the issues in the divorce.
Interrogatories & Production of Documents Interrogatories are a series of questions which the opposing party must answer under oath. Typically these include questions about the financial and equitable matters between the parties, but may also include questions concerning the grounds for divorce. Requests for Production of Documents are a request for the opposing party to produce documents either relating to the Interrogatories or other relevant documents to the Divorce.
Requests for Admissions Requests for admissions are also useful in a divorce. A Request for Admissions is simply a list of true or false questions that the opposing party must answer under oath. Like most areas of discovery, requests for admissions allow the parties to narrow the issues in a relatively inexpensive means.
Subpoena Duces Tecum A subpoena duces tecum, or subpoena for production of evidence, is another means of discovery that can be used during a divorce. Virginia law allows attorneys to issue subpoenas without the Court's permission; however, an opposing party may object through a Motion to Quash, and a hearing must be held to determine whether the party whom the subpoena is issued against must produce the documents.
Releases Finally, Releases. These are simply authorizations signed by the opposing party that allow the party requesting the documents to go directly to a source, using the release, to obtain what maybe privileged documentation. This can sometimes result in useful information regarding both equitable matters in the divorce as well as the fault based grounds for the divorce.
Discovery is an important part of the divorce process. It's purpose is to gather information regarding equitable assets and grounds of divorce. It allows a party to narrow the issues in the divorce. There are a variety of discovery filings in a divorce, the most common are request for interrogatories and production of documents. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County please contact Waltrip Firm, PC for a free consultation.
Wednesday, January 22, 2014
The Divorce Process - The Complaint
This blog is the first in a series covering the Divorce Process. Specifically, this blog looks at the Divorce Complaint; the various types, and what is included in the Complaint. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County, and you are considering filing a Complaint for Divorce, please contact my office and schedule a free consultation.
Many times a Divorce commences with the filing of a Complaint. There are certain statutory requirements that a complaint must meet. If the complaint does not meet these very specific and necessary requirements it can either be rejected/dismissed by the Court, or the opposing party may file a demurrer and have the complaint dismissed. A few of the requirements include the names and addresses (if known) of the parties, that both parties are of the age of majority and can be sued, and also that the court has both subject matter and personal jurisdiction over the parties. There are also requirements when one party is a member of the Armed Services.
The Complaint must make specific factual statements that are the basis for divorce. If the basis is adultery, cruelty, or other fault based grounds, the filing party must allege the facts that give rise to the fault in the complaint. If a party fails to allege these facts, they may request to amend the complaint later, but maybe barred from doing so. It is best to make all well-grounded allegations in the initial complaint to avoid losing it later. This includes when making the prayer for relief.
The Complaint must also make a specific prayer for relief. This tells the Court what type of outcome the filing party is requesting. This may simply be a request to be divorced, but often it includes an award of spousal support, child support, physical custody of the children, attorney's fees, and equitable distribution of the marital assets. Like the factual basis for the divorce, if prayers for relief are left absent the filing party may be barred from amending the complaint at a later time.
The Complaint is only the first step in the process of divorce. However, it is important that the complaint have all of the necessary requirements regarding the parties, the basis for the divorce, and the relief requested. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County, please contact my office and schedule a free consultation.
Many times a Divorce commences with the filing of a Complaint. There are certain statutory requirements that a complaint must meet. If the complaint does not meet these very specific and necessary requirements it can either be rejected/dismissed by the Court, or the opposing party may file a demurrer and have the complaint dismissed. A few of the requirements include the names and addresses (if known) of the parties, that both parties are of the age of majority and can be sued, and also that the court has both subject matter and personal jurisdiction over the parties. There are also requirements when one party is a member of the Armed Services.
The Complaint must make specific factual statements that are the basis for divorce. If the basis is adultery, cruelty, or other fault based grounds, the filing party must allege the facts that give rise to the fault in the complaint. If a party fails to allege these facts, they may request to amend the complaint later, but maybe barred from doing so. It is best to make all well-grounded allegations in the initial complaint to avoid losing it later. This includes when making the prayer for relief.
The Complaint must also make a specific prayer for relief. This tells the Court what type of outcome the filing party is requesting. This may simply be a request to be divorced, but often it includes an award of spousal support, child support, physical custody of the children, attorney's fees, and equitable distribution of the marital assets. Like the factual basis for the divorce, if prayers for relief are left absent the filing party may be barred from amending the complaint at a later time.
The Complaint is only the first step in the process of divorce. However, it is important that the complaint have all of the necessary requirements regarding the parties, the basis for the divorce, and the relief requested. If you are looking for a divorce attorney in Williamsburg, York County, or New Kent County, please contact my office and schedule a free consultation.
Saturday, December 14, 2013
What is a preliminary hearing?
A preliminary hearing is one of many hearings in the process of defending an accusation of criminal conduct. Outside of the actual trial of the case, it can also be one of the most important. For a blog on preliminary hearing strategy click here.
Virginia Code § 19.2-218 states "No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense ...." This means that in the Commonwealth of Virginia every person charged with a felony has a statutory right to a preliminary hearing.
Practically speaking, the preliminary hearing will take place in the General District Court in the jurisdiction where the accused is scheduled to be tried. The Commonwealth's Attorney will call witnesses who will testify to underlying facts and evidence. The defense attorney will have an opportunity to cross examine these witnesses, and a Judge will then decide whether there is sufficient probable cause to certify the matter to Circuit Court for trial.
It is important to understand that the standard by which a Judge reviews the evidence is one of probable cause and not reasonable doubt. Many an accused leave a preliminary hearing confused and expecting the charges to be dropped before trial because the Commonwealth's witnesses leave the stand without testifying to more than a bare minimum of facts and evidence. But, probable cause is a standard well below the high standard of reasonable doubt. In fact, depending on the charge, the facts, and the witnesses, very little evidence needs to be produced by the witnesses for the Commonwealth to reach the burden of probable cause.
Does this mean a preliminary hearing is a waste of time, or insignificant? By no means! At a preliminary hearing the defense attorney has the freedom to question every witness put on by the Commonwealth. And, any attorney worth their salt will relish at the idea of doing so., Other than the trial, the preliminary hearing is likely to be the only opportunity for the defense attorney to question a witness. It is also a good gauge of how a witness will react to difficult questions, and what evidence they actually have against an accused. If the evidence is weak, has procedural defaults, or a witness is not credible, an attorney for the accused may have the charges dismissed altogether. If the Commonwealth has "over charged" an accused, or has no factual basis for a felony charge, the Judge may also find an accused guilty of a misdemeanor rather than the felony charged.
Finally, it is important to understand that the statutory right to a preliminary hearing only applies to felonies There is no right to a preliminary hearing in a misdemeanor case; however, the trial of the misdemeanor can fulfill all the purposes of a preliminary hearing and more. Virginia has an absolute right to appeal from the General District Court to the Circuit court in misdemeanor cases. The appeal is heard de novo, which means it is equivalent to a new trial.
Remember, in Virginia an accused has a statutory right to a preliminary hearing. Practically speaking it takes place in the General District Court and provides a defense attorney the opportunity to cross examine the witnesses for the Commonwealth. Finally, the right to a preliminary hearing only applies when accused of a felony and not a misdemeanor.
If you have any questions about preliminary hearings, or other criminal procedure matters, please feel free to contact the author through his website at www.waltripfirm.com.
Virginia Code § 19.2-218 states "No person who is arrested on a charge of felony shall be denied a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense ...." This means that in the Commonwealth of Virginia every person charged with a felony has a statutory right to a preliminary hearing.
Practically speaking, the preliminary hearing will take place in the General District Court in the jurisdiction where the accused is scheduled to be tried. The Commonwealth's Attorney will call witnesses who will testify to underlying facts and evidence. The defense attorney will have an opportunity to cross examine these witnesses, and a Judge will then decide whether there is sufficient probable cause to certify the matter to Circuit Court for trial.
It is important to understand that the standard by which a Judge reviews the evidence is one of probable cause and not reasonable doubt. Many an accused leave a preliminary hearing confused and expecting the charges to be dropped before trial because the Commonwealth's witnesses leave the stand without testifying to more than a bare minimum of facts and evidence. But, probable cause is a standard well below the high standard of reasonable doubt. In fact, depending on the charge, the facts, and the witnesses, very little evidence needs to be produced by the witnesses for the Commonwealth to reach the burden of probable cause.
Does this mean a preliminary hearing is a waste of time, or insignificant? By no means! At a preliminary hearing the defense attorney has the freedom to question every witness put on by the Commonwealth. And, any attorney worth their salt will relish at the idea of doing so., Other than the trial, the preliminary hearing is likely to be the only opportunity for the defense attorney to question a witness. It is also a good gauge of how a witness will react to difficult questions, and what evidence they actually have against an accused. If the evidence is weak, has procedural defaults, or a witness is not credible, an attorney for the accused may have the charges dismissed altogether. If the Commonwealth has "over charged" an accused, or has no factual basis for a felony charge, the Judge may also find an accused guilty of a misdemeanor rather than the felony charged.
Finally, it is important to understand that the statutory right to a preliminary hearing only applies to felonies There is no right to a preliminary hearing in a misdemeanor case; however, the trial of the misdemeanor can fulfill all the purposes of a preliminary hearing and more. Virginia has an absolute right to appeal from the General District Court to the Circuit court in misdemeanor cases. The appeal is heard de novo, which means it is equivalent to a new trial.
Remember, in Virginia an accused has a statutory right to a preliminary hearing. Practically speaking it takes place in the General District Court and provides a defense attorney the opportunity to cross examine the witnesses for the Commonwealth. Finally, the right to a preliminary hearing only applies when accused of a felony and not a misdemeanor.
If you have any questions about preliminary hearings, or other criminal procedure matters, please feel free to contact the author through his website at www.waltripfirm.com.
Thursday, March 7, 2013
Child Protective Services Matters - The PPO
When CPS comes knocking on your door it can be a frightening and difficult circumstance. Imagine that someone you have never met has determined that you as a parent have neglected or abused your child? In many cases, regardless of whether facts have been proven in a court of law, a parent must be prepared to argue for their Constitutional right to keep custody of their children. Procedurally, it's important to understand the rights you have at each stage of the court proceedings. In this article we review the Preliminary Protective Order.
Preliminary Protective Order ("PPO"). Initially the County/City or Other Government Agency may move for a PPO. A PPO will change the status a parent has with their children on a temporary and immediate basis. The decisions at a PPO hearing maybe temporary, however, a failure to object to a PPO can result in the inability to have a factual hearing on the basis of the underlying claim by the County/City. What results if there is no objection is an Adjudication with a minimal showing that any form of any abuse or neglect has occurred.
Many times the County/City will proceed at a PPO with only an affidavit signed by an investigator. This should be objected to, unless a parent wishes to turn the custody of their children over to CPS.
Importantly, not every PPO requests custody be taken from parents, however, in cases where the PPO does it is important to have an Adjudicated hearing on the facts. If the child is taken into custody of CPS this can result in the actual parents of the child being required to pay support, TANF, or other social services for a child they regularly support without soils services.
If you have been contacted by CPS on charges of Neglect or Abuse, hire an attorney who can defend your right by objecting to PPO hearings when appropriate.
Preliminary Protective Order ("PPO"). Initially the County/City or Other Government Agency may move for a PPO. A PPO will change the status a parent has with their children on a temporary and immediate basis. The decisions at a PPO hearing maybe temporary, however, a failure to object to a PPO can result in the inability to have a factual hearing on the basis of the underlying claim by the County/City. What results if there is no objection is an Adjudication with a minimal showing that any form of any abuse or neglect has occurred.
Many times the County/City will proceed at a PPO with only an affidavit signed by an investigator. This should be objected to, unless a parent wishes to turn the custody of their children over to CPS.
Importantly, not every PPO requests custody be taken from parents, however, in cases where the PPO does it is important to have an Adjudicated hearing on the facts. If the child is taken into custody of CPS this can result in the actual parents of the child being required to pay support, TANF, or other social services for a child they regularly support without soils services.
If you have been contacted by CPS on charges of Neglect or Abuse, hire an attorney who can defend your right by objecting to PPO hearings when appropriate.
Tuesday, January 8, 2013
Waltrip Appointed to Defend Accused Child Rapist
Attorney Brandon C. Waltrip has been appointed to represent a local man on charges of rape of a child under thirteen years of age; indecent liberties with a child; and assault and battery of an infant. Mr. Waltrip was appointed to represent the defendant on December 21, 2012. The defendant was denied bond by the Court, which was appealed to the Wililamsburg James-City County Circuit Court. At the bond appeal, Mr. Waltrip argued that the defendant would plead not guilty to the charges.
Circuit Court Judge McGinty denied bond and the matter was remanded to the Williamsburg Juvenile and Domestic Relations Court for pre-liminary hearing. The pre-liminary hearing is scheduled for January 25, 2013 at 10:00 AM.
Circuit Court Judge McGinty denied bond and the matter was remanded to the Williamsburg Juvenile and Domestic Relations Court for pre-liminary hearing. The pre-liminary hearing is scheduled for January 25, 2013 at 10:00 AM.
Thursday, October 18, 2012
What is an Arraignment and whose this attorney?
One of the first steps in a criminal prosecution is the arraignment. This is when the accused is brought before a judge or magistrate to determine whether he or she wishes to hire an attorney, have the court appoint an attorney, or waive the right to an attorney.
Many defendants choose to hire their own attorney, however, due to a lack of finances many cannot afford an attorney. The Supreme Court of Virginia allocates funds that provide indigent defendants with an attorney paid for by the State. At the arraignment, if an accused requests a court appointed attorney, the Judge will usually ask a series of questions to determine the average income of the accused. The Judge will then determine, based on statutory provisions, whether hiring an attorney would create an undue hardship for the accused. If a hardship would occur or already exists the court will appoint an attorney. The procedures are outlined in detail here - http://www.courts.state.va.us/courtadmin/aoc/djs/resources/manuals/ctapptatty/toc.pdf
Court appointed attorneys will vary depending on jurisdiction. Jurisdictions such as Richmond, Norfolk, or Fairfax have Public Defender who work full time for the Commonwealth representing indigent defendants. There is a Public Defender's Office with a full staff of employees. Smaller jurisdictions, such as James City County, Gloucester, or York County, rely on criminal defense attorneys in the area to accept court appointed cases. An attorney is usually given one week out of the year where they must appear for arraignments and should an accused require a court appointed attorney they are there to meet the accused and discuss their case with them. At times, due to scheduling of arraignments, the "duty attorney" (as the court appointed attorney is sometimes called), will not be present and the Judge will appoint the attorney and provide his or her information to the accused to get in touch with on their own.
Other than deciding whether to hire an attorney, request a court appointed attorney, or waive one's right to an attorney, there are also two important things any accused should keep in mind.
1. If you are not sure what you want to do, ask for a continuance. If you are the accused and you wish to hire an attorney, but don't currently have the funds, request a continuance to hire an attorney. Most judges grant two to three weeks for an accused to hire an attorney and notify the court. They will set a date for you to appear again, but this will give you time to find the right attorney. If this is your position, make use if it.
2. The second important thing to remember is this is not the time to argue your case! Many defendants show up for arraignment and begin revealing details to Judge about what happened. This should never happen. 99% of the time, this same Judge will hear the case later on and decide whether an accused is guilty or innocent. A wise defendant will make no statements about their case to the Judge at arraignment.
Arraignments are an important part of the criminal justice system. Make use of them to hire an attorney, or to have one appointed by the court. Finally, do not discuss or reveal any facts about your case to the Judge or court. If you have questions about an up-coming arraignment, please feel free to contact Brandon C. Waltrip, Esq. by email at Brandon@hlpedersenlaw.com, or by calling 757-903-4410.
Many defendants choose to hire their own attorney, however, due to a lack of finances many cannot afford an attorney. The Supreme Court of Virginia allocates funds that provide indigent defendants with an attorney paid for by the State. At the arraignment, if an accused requests a court appointed attorney, the Judge will usually ask a series of questions to determine the average income of the accused. The Judge will then determine, based on statutory provisions, whether hiring an attorney would create an undue hardship for the accused. If a hardship would occur or already exists the court will appoint an attorney. The procedures are outlined in detail here - http://www.courts.state.va.us/courtadmin/aoc/djs/resources/manuals/ctapptatty/toc.pdf
Court appointed attorneys will vary depending on jurisdiction. Jurisdictions such as Richmond, Norfolk, or Fairfax have Public Defender who work full time for the Commonwealth representing indigent defendants. There is a Public Defender's Office with a full staff of employees. Smaller jurisdictions, such as James City County, Gloucester, or York County, rely on criminal defense attorneys in the area to accept court appointed cases. An attorney is usually given one week out of the year where they must appear for arraignments and should an accused require a court appointed attorney they are there to meet the accused and discuss their case with them. At times, due to scheduling of arraignments, the "duty attorney" (as the court appointed attorney is sometimes called), will not be present and the Judge will appoint the attorney and provide his or her information to the accused to get in touch with on their own.
Other than deciding whether to hire an attorney, request a court appointed attorney, or waive one's right to an attorney, there are also two important things any accused should keep in mind.
1. If you are not sure what you want to do, ask for a continuance. If you are the accused and you wish to hire an attorney, but don't currently have the funds, request a continuance to hire an attorney. Most judges grant two to three weeks for an accused to hire an attorney and notify the court. They will set a date for you to appear again, but this will give you time to find the right attorney. If this is your position, make use if it.
2. The second important thing to remember is this is not the time to argue your case! Many defendants show up for arraignment and begin revealing details to Judge about what happened. This should never happen. 99% of the time, this same Judge will hear the case later on and decide whether an accused is guilty or innocent. A wise defendant will make no statements about their case to the Judge at arraignment.
Arraignments are an important part of the criminal justice system. Make use of them to hire an attorney, or to have one appointed by the court. Finally, do not discuss or reveal any facts about your case to the Judge or court. If you have questions about an up-coming arraignment, please feel free to contact Brandon C. Waltrip, Esq. by email at Brandon@hlpedersenlaw.com, or by calling 757-903-4410.
Monday, October 15, 2012
3 Tips for a Driving on Suspended Charge
Have you been charged recently with a driving on suspended license? Here are a few quick tips to help yourself, and help your attorney, get your charged reduced or dismissed altogether.
1. PAY OFF COURT FINES. Many driving on suspended charges are a result of past un-paid court cost or fine. Any defendant should get these paid in full prior to their court date. Many times this can result in a reduction in charge with a very low fine.
2. GET YOUR LICENSE RE-INSTATED. If you have paid up any court costs that were previously owed, you should be able to get your license re-instated through the DMV. There is typically a $150 re-instatement fee that should be paid to the DMV. This again can help in having a charged reduced if not dismissed.
3. CORRECT ANY ISSUE THAT RESULTED IN A STOP. Drivers on the highways of the Commonwealth are pulled over all the time for remedial defects in their vehicles or registration; including a lapse in insurance coverage! These should be corrected prior to the trial date and can aid in having a charged reduced or dismissed.
Following these three quick tips can help your attorney navigate a charge of Driving on Suspended. Although not considered by many to be a very serious charge, these simple tips are important because multiple convictions for driving on suspended carries mandatory jail time. Again, doing these three things do not guarantee a reduction in charges or a dismissal but certainly will not hurt your case. If you have any questions about a driving on suspended charge, or any other traffic matter, please call and I can personally answer any questions you might have.
1. PAY OFF COURT FINES. Many driving on suspended charges are a result of past un-paid court cost or fine. Any defendant should get these paid in full prior to their court date. Many times this can result in a reduction in charge with a very low fine.
2. GET YOUR LICENSE RE-INSTATED. If you have paid up any court costs that were previously owed, you should be able to get your license re-instated through the DMV. There is typically a $150 re-instatement fee that should be paid to the DMV. This again can help in having a charged reduced if not dismissed.
3. CORRECT ANY ISSUE THAT RESULTED IN A STOP. Drivers on the highways of the Commonwealth are pulled over all the time for remedial defects in their vehicles or registration; including a lapse in insurance coverage! These should be corrected prior to the trial date and can aid in having a charged reduced or dismissed.
Following these three quick tips can help your attorney navigate a charge of Driving on Suspended. Although not considered by many to be a very serious charge, these simple tips are important because multiple convictions for driving on suspended carries mandatory jail time. Again, doing these three things do not guarantee a reduction in charges or a dismissal but certainly will not hurt your case. If you have any questions about a driving on suspended charge, or any other traffic matter, please call and I can personally answer any questions you might have.
Friday, September 28, 2012
What in the world is an Uncontested Divorce?
Almost every divorce client walks in to an attorney's office and the first thing they ask about is the Uncontested Divorce. And, its to be expected. Most law firms charge a flat rate for Uncontested Divorces, and the fee is usually less than what most people expect to pay for a Divorce. The truth is, there is no Uncontested Divorce.
What an attorney means when they advertise an Uncontested Divorce, is that if both parties are willing to enter into what is commonly referred to as a Property Settlement, or Stipulation Agreement, the attorney will draft an Agreement and the other necessary filings for a flat rate. But, most people in a Divorce are not in agreement about the matters in a Property Settlement Agreement.
A Property Settlement Agreement covers every aspects of the parties marriage from their home, vehicles, credit card debt, spousal support, child support, healthcare for children, etc. These are issues which most people may have an idea about but are not 100% sure on which side they fall. Of course, if an attorney says a party is entitled to spousal support, they are almost always willing to fight out a Contested Divorce to obtain this support. If not, then they will almost always compromise on the issue - even paying spousal support in some cases to leave the marriage in good will.
There are also a few pitfalls to an Uncontested Divorce that every client should be aware of. For example, does the flat fee cover court costs, depositions, service of process and what about postage? Many law firms have hidden fees with an Uncontested Divorce. Some firms charge between $75 and $100 per page for changes to the Agreement. Some of these changes maybe as simple as changing whether the Husband or Wife will cover the children's health insurance. This will take an attorney only moments to alter and a bill goes out for a $100.
What should a client do then? The best advice for someone hoping to keep their Divorce cost low and follow down the path of an Uncontested Divorce is to sit down with your spouse and write out the property that each of you intend to keep, any child custody arrangements, or even who will be responsible for what portion of the family debt. Something as simple as writing out who gets what can save hundreds of dollars in attorneys fees.
If you are considering an Uncontested Divorce - give me a call or email and I can help you work through these matters in a cost effective and efficient way.
What an attorney means when they advertise an Uncontested Divorce, is that if both parties are willing to enter into what is commonly referred to as a Property Settlement, or Stipulation Agreement, the attorney will draft an Agreement and the other necessary filings for a flat rate. But, most people in a Divorce are not in agreement about the matters in a Property Settlement Agreement.
A Property Settlement Agreement covers every aspects of the parties marriage from their home, vehicles, credit card debt, spousal support, child support, healthcare for children, etc. These are issues which most people may have an idea about but are not 100% sure on which side they fall. Of course, if an attorney says a party is entitled to spousal support, they are almost always willing to fight out a Contested Divorce to obtain this support. If not, then they will almost always compromise on the issue - even paying spousal support in some cases to leave the marriage in good will.
There are also a few pitfalls to an Uncontested Divorce that every client should be aware of. For example, does the flat fee cover court costs, depositions, service of process and what about postage? Many law firms have hidden fees with an Uncontested Divorce. Some firms charge between $75 and $100 per page for changes to the Agreement. Some of these changes maybe as simple as changing whether the Husband or Wife will cover the children's health insurance. This will take an attorney only moments to alter and a bill goes out for a $100.
What should a client do then? The best advice for someone hoping to keep their Divorce cost low and follow down the path of an Uncontested Divorce is to sit down with your spouse and write out the property that each of you intend to keep, any child custody arrangements, or even who will be responsible for what portion of the family debt. Something as simple as writing out who gets what can save hundreds of dollars in attorneys fees.
If you are considering an Uncontested Divorce - give me a call or email and I can help you work through these matters in a cost effective and efficient way.
Tuesday, June 28, 2011
What is “Gross Income” for Purposes of Child Support?
Under Virginia Code §108.2(C) gross income means “all income from all sources.” This includes, but is not limited to income from salaries, wages, commissions, royalties, bonuses, dividends ... spousal support, rental income, gifts, prizes and awards.” The Commonwealth takes a very broad approach in construing this language. Courts will include “nonmonetary as well as cash income.”
In Howe v. Howe, the Court of Appeals included a party's contributions to their retirement plan as well as a $10,000 gift. The Court stated “the emphasis should be on including, not excluding, income especially where including the income more accurately reflects a parent's economic condition and financial circumstances.”
The broad construction of gross income is however, not without limitations. The Court of Appeals has ruled that “[d]etermination of support awards must be based on contemporaneous circumstances.” In DeTuncq, the Court held “income includes bonuses, but should not include income 'premised upon the occurrence of an uncertain future circumstance.” This was re-affirmed in Broadhead, where the Court stated “a trial court should only include a conditional bonus within the employee's gross income when, at the time of the evidentiary hearing, the conditions are reasonably likely to be met for the bonus to vest.” The finding in Broadhead resulted in the Court of Appeals excluding a party's “predicted bonus.” Id. at 19.
In McMartin the Court of Appeals further limited the inclusive nature of Gross Income when it found that incomes appearing as commissions, advances, and gifts should not be included where they are in fact loans. In McMartin, a wife was given financial help from her employer and friend, which included a down payment on a home, money advanced for living expenses, money paid for wife's life insurance, and $900 per month in rent the wife was not charged.
The Court found the money given “over and above her salary ... [were] advances against her future commission.” The Court ruled “the advances and payments were in the nature of loans, rather than gifts and commissions.” Furthermore, there was no authority “that compels, as a matter of law, the inclusion of a loan in party's gross income.” And, there was “no indication that the advances will not be repaid by wife upon receipt of her commission.”
CONCLUSION:
- Courts in the Commonwealth will include any and all incomes in determining gross income.
- Limitations require income to be contemporaneous and not in the form of loans.
If you have questions regarding your Child Support please contact Brandon C. Waltrip, or Heather Pedersen at Pedersen, PLLC in Williamsburg, VA. (757)903-4410.
Statutes and Case Law to Consider
Code of Virginia §108.2(C) (1950 as amended)
Turner v. Commonwealth, 226 Va. 456 (1983)
Broadhead v. Broadhead, 2010 Va. App. LEXIS 101 (unpublished)
Carmon v. Dep't of Soc. Servs., 21 Va. App. 749 (1996)
DeTuncq v. DeTuncq, 2001 Va App LEXIS 248 (unpublished)
Howe v. Howe, 30 Va. App. 207 (1999)
McMartin v. McMartin, 2006 Va. App. LEXIS 41 (unpublished)
***This Blog is NOT Intended to replace actual Legal Advice. Please See a Licensed Attorney if you have questions regarding any legal matter.
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