Monday, September 29, 2014

5 Ways An Attorney Can Help You During Divorce

Many people hire attorneys to help them navigate the divorce process but do you really know what all an attorney can do for you?  These are 5 things that attorneys do as a regular part of their job that you may or may not know about.  

1.Draft the legal documents.
In a divorce, there are many documents that need to be drafted which may be invalid if not properly drafted.  These include but are not limited to: Complaint for Divorce, Property Settlement Agreement, Depositions/Affidavits, Final Decree of Divorce.  An attorney will know and research exactly how to draft these documents to protect you in the future.

2. Provide legal advice.
Aside from the documents that must be filed, an attorney gives you legal advice.  This means the attorney will tell you whether or not a property settlement agreement is a good idea and if it's an offer you should consider accepting.  An attorney can provide advice on how to work out an appropriate visitation schedule for your children or how to handle a sudden change in that schedule (i.e., your ex-spouse did not bring the children home when he/she should have).

3. Negotiate. 
An attorney knows the tactics and strategies for negotiating a settlement agreement with your spouse.  Not being personally involved in the case, the attorney is not clouded by the extensive emotions that come into a divorce and can effectively negotiate on your behalf.

4. Direct you to other professionals.
An attorney should be able to provide you with the resources you need to make it through your divorce.  He/she should be able to give you references for a therapist or financial advisor should you need or want one. 

5. Explain the outcome.
If you do end up in court with a judge determining the outcome of your divorce, your attorney can explain to you what the judge has ruled, what your obligations are and what you should expect moving forward and, if applicable, how to change that ruling in the future (i.e, appeal, motion to reconsider, etc.).  

An attorney can do many things for you during your divorce process and these are only a few of the ways an attorney can help you.  If you are unsure of where to turn for help during your divorce, it doesn't hurt to call your attorney and see if they can help you.  If you are going through a divorce and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com. 

Wednesday, September 24, 2014

Kardashian v. Jenner - What are "Irreconcilable Differences"?

It's been all over the news this week.  Kris Jenner (formerly and also known as Kris Kardashian) files for divorce from Bruce Jenner, citing "irreconcilable differences".  I love when the media uses quotations of legal terms.  Sometimes it can make a case sound much more interesting.  Sometimes people want to read because they want to figure out what that term means.  So what are "irreconcilable differences"? 

Before we get to that term, let's get down to the basic concept of divorce.  There are two basic ways to get a divorce: on a fault ground or on a no-fault ground. 

Fault Grounds 
If you are obtaining a divorce on fault grounds it means one party did something legally wrong during the marriage and as a result of that act, the marriage fell apart.  These can include adultery, desertion, cruelty, etc.  This means on person is to blame for the marriage ending and can have consequences for that person (i.e., that person to blame may not be allowed to be awarded alimony).

No Fault Grounds
If you are obtaining a divorce on no-fault grounds, it means the marriage simply fell apart and neither party is to blame for that.  This can mean the parties grew apart, had different ideas of what marriage should be like, fell out of love, etc.  So what do we call all of those things?  We call them "irreconcilable differences".  Basically, the parties disagree on something important to the marriage and they are never going to be able to agree. 

So, essentially, "irreconcilable differences", while it may sound interesting and intriguing in the news, simply means the parties no longer want to be married and are moving on with their lives. 

If you are thinking about a divorce or going through a divorce and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, September 22, 2014

3 Mistakes You Are Making with Your Will

Hopefully you have read my post on The Benefits of a Will, have met with an attorney and drafted a will.  If not, go back and read that post before you continue on.  If so, here are a few mistakes you may be making with regards to your Will.  

1. Keeping it in a safe deposit box.
I'm sure your attorney told you to make sure you keep your Will in a safe place.  As you may or may not know, in order to administer your estate (distribute your property) after your death, the executor needs to take your Will to the courthouse.  In most circumstances, though there are a few exceptions, the Court will only recognize the original signed will - not a copy.  So, what's safer than a safe deposit box?  Well, maybe nothing.  The problem comes into play with accessing your safe deposit box after your death.  If you are going to keep your will in a safe deposit box, ensure that the executor (and back-up executor, see below) have access to your safe deposit box without you being present.  Otherwise, your executor is going to run into major problems accessing your will, which is one of the first steps to distributing your property. 


2. Only designating one executor and/or beneficiary.
Let's say there is only one person in your life that you want to handle your estate and/or want to inherit all of your property so you only listed one person as the executor and one person as the beneficiary and were content with your will.  Here's the problem: if that person is no longer willing or able to serve as the executor, or they have passed away prior to you, who knows where your property is going to go?  If you only list one executor and that person is unable or unwilling to serve, the court will have to appoint someone to do the job.  To fix this, appoint an executor and then appoint someone as a back up executor, should the first person be unable or unwilling to serve.  Same thing goes for your beneficiaries: make sure you have back ups.  So give all of your property to the one person who you want to receive it, and if they have predeceased you, give it to a back up person.  This could be a person, a charity, a church, etc.  If you do not list enough people/organizations as beneficiaries and the court cannot find any heirs at law, the government may end up receiving all of your property. 

3. Not reviewing/updating your Will
It is absolutely wonderful that you have a will in place.  However, it is important to review it on a regular basis (I would suggest at least annually).  This will ensure that your plan remains exactly as you want it.  Maybe you've had a falling out with a beneficiary, or maybe you've had new additions to the family.  Make sure your will is up to date on a regular basis.  In addition, you may want to contact your attorney each year to ensure the laws have not changed surrounding your will and that it will still play out exactly as you want it too.

Whether you have drafted your will yet or not, these are some concerns that you should keep in mind.  As always, you should discuss the specifics of your circumstances with an attorney to determine the best plan for you.  If you would like a consultation on a will or any related document, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Wednesday, September 10, 2014

What You Should Know About Protective Orders

In my last post discussing the Ray Rice situation, I mentioned that protective orders are something that are typically involved in similar situations.  This post is to give you more information on protective orders, what they are, who needs them and where you can get them.  If you think a friend or family member may be in need of a protective order, please share this information and/or contact your local services group for help (see below for more information on that). 

Protective orders are a court orders that are put in place to restrict contact between two or more people.  To be granted a protective order, you must prove to the court that there is threat of imminent (very near future) harm by someone.  There are three major steps to obtaining protective orders.

First, you can go to your local magistrate's office and request an emergency protective order.  These typically last for three days and expire at 11:59 p.m. on the night of the third day following issuance.  These are issued "ex-parte" meaning the person whom you believe is a threat to your safety does not have notice of the proceeding and is not present when you request the protective order. 

The next step is to obtain a preliminary protective order.  This means, within the three days that the emergency protective order is in effect, you appear before a judge (in general district court if it is not a family member or in juvenile and domestic relations district court if it is a family member or someone you live with).  You, again, have to prove that there is the threat of imminent harm.  If the judge issues this protective order, it will be in effect for approximately 15 days.  Within those 15 days, the court will hold another hearing for another protective order.  In the meantime, the person whom the protective order is sought against (the person you believe is going to harm you) will be formally served and notified of the protective orders and proceedings and will be given the opportunity to appear at the next hearing and be heard on the issues. 

At the next hearing, which is likely the last hearing that will be held, the court will hear evidence from you and the other person as to whether or not there is a threat of imminent harm to you.  If the court finds you are in imminent danger, the court can issue a protective order that will be in effect for two years.  If, after those two years, you believe you are still in danger, you can seek to have it extended or go through the process again to obtain a new two year protective order.

Typically, you can include any family member or person who resides with you as people protected by the protective order.  For example, if you have a child who lives with you, you can include that child in the protective order so that the other person who is the threat of imminent harm cannot have contact with that child as well. 

Protective orders, if granted, will prohibit the threatening person from contacting you in any way.  This means he/she cannot attempt to contact you through email, mail, a third party, etc.  It may also include a provision that the person is to stay a certain distance away from your work and/or home addresses. 

While the process may appear somewhat straight forward, it is a complicated process to have a court actually grant the protective order in your favor.  If you are not granted the protective order, there are limitations on when you can try again.  Given the seriousness of the situations that protective orders typically arise from, you should seriously consider seeking legal advice and/or representation by a capable lawyer. 


**NOTE: If you need additional services and are the victim of domestic or sexual abuse, there are many area organizations that may be able to assist you.  The contact information for those organizations are listed below.
Greater Richmond Regional Hotline: (804) 612-6126
Hanover Safe Place: www.hanoversafeplace.com
Richmond YWCA: www.ywcarichmond.org
Safe Harbor: www.safeharborshelter.com


Monday, September 8, 2014

Understanding the Ray Rice situation

This post may be sound a little off topic from my usual posts but, as a huge Ravens fan, I wanted to share my thoughts on the current situation and I promise to tie it in to my normal themes.

What happened with Ray Rice and his suspension from the NFL?

First, let's go back to where it all started. Ray Rice was accused of assaulting his girlfriend in an elevator in Atlantic City.  Because they were in an intimate relationship, this is considered domestic violence.  From there, legally, two things happened.

First, Ray Rice had to face his charges in the court system.  Because it was a first offense, Ray Rice was able to have those charges dismissed.  To go into a little bit more depth, there are certain laws in certain states that allow someone who is charged with a crime for the first time to complete certain requirements and the charge will be dismissed (you see this in a lot of cases involving drugs).  Now, because it was dismissed does not mean his record is clean.  When a case is dismissed in this manner, the charge will remain on his record.

Second, Ray Rice had to face his employer, the NFL.  Many people are uncertain why the NFL even got involved?  The NFL, similar to many companies, have a code of conduct, meaning they expect their employees to behave in a particular manner.  Assaulting someone is a violation of this code of conduct.  This is an employment law matter, not a criminal matter in this situation.  As a result, the NFL initially suspended Ray Rice for 2 games of the season.

So now what happens with all of this since the video from the elevator has surfaced?  The criminal side of it in the court is over.  We all have a constitutional right that prohibits the government from trying us for the same crime twice.  Since Ray Rice's case has been dismissed, as a result of the first offender law, the state cannot recharge him or modify his sentence.  The employment law side of it, however, might be adjusted.  If there is no "double jeopardy" clause in the collective bargaining agreement, the NFL, the employer, can change Ray Rice's suspension, as they have done.

A third aspect to consider, that I don't believe happened in this case, is protective orders.  Ray Rice's girlfriend could have attempted to go to the court system and obtain a protective order, requiring Ray Rice to stay away from her and prohibiting him from communicating with her.  If you are in a similar situation, you may want to consider seeking a protective order.  

This may be a bit oversimplified but to sum it up, Ray Rice's charges of assault have been dismissed and will remain dismissed but the fate of Ray Rice in the NFL is still uncertain and not looking good at this point. 

Thursday, August 28, 2014

4 Things You're Doing that is Hurting Your Custody Case

For many people, custody cases are very tough experiences.  Whether you are attempting to litigate your custody matter yourself or you are being advised by an attorney, here are 4 things you may be doing that is hurting your chances of winning.

Getting emotional in court
Whatever you need to do to remain calm and collected, whether it be see a therapist or having a nightly venting session with your best friend, do it.  You may think that by getting upset in court the judge is seeing how much you care about your child and the circumstances.  However, the judge deals with similar situations all day, everyday.  Showing too much emotion in court may come across as unstable and needy, not as the caring parent that you are.  If you have retained an attorney, talk with your attorney to make sure you know what to expect in court.  That way, there is less chance of you being surprised by something in court and losing your emotions in front of the judge.

Not talking to your child's other parent. 
This is, no doubt, a hard time for you to work with your child's other parent.  After all, you two are fighting over the most important thing in your life: your child.  However, one of the things judges look at when determining custody is the ability of each parent to communicate with and cooperate with the other parent.  Find a way, whether it is by email or weekly phone calls, to keep the communication lines open with the other parent.  And you never know, you may be able to work this thing out after all.

Talking to your child about the case.
There are, of course, exceptions to all of these things.  However, it is generally not a good idea to be talking to your child about the case.  You may see it as keeping them informed; it is their life after all.  However, the courts may view it as you trying to skew the child in your favor or interfering with the child's relationship with the other parent.  And worst of all, despite your intentions, you may be confusing your child and making everything more difficult on them.  If you believe your child needs to talk to someone, set them up with a therapist or ask the guardian ad litem for help on easing the process for your child.  

Ignoring the judge.
It is hard to hear a judge, someone who does not know you or your child, tell you how to handle a situation.  However, ignoring the judges suggestions or requirements can hurt you long term.  For example, the judge has ordered you attend a co-parenting class.  While you may take this as an insult because you feel you know how to co-parent just fine, think twice before ignoring that requirement.  A co-parenting class may be required by all parties to any court action in front of that judge.  If you don't attend the co-parenting class, you are not going to be able to convince the judge you know better than he or she; you ARE you going to convince the judge that you are not willing to abide by the rules in an effort to obtain the best circumstances for your child.



While you may have the best interests of your child at heart, remember the judge can only take into consideration the evidence you present.  By doing the above four things, you are essentially showing the judge evidence that hurts you.  It is always wise to talk with an attorney before you do anything related to a custody case.  If you are involved in a custody or divorce case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Wednesday, August 27, 2014

Should my Will be notarized?

While I HIGHLY recommend you work with a Virginia licensed attorney in creating a will, trust, power of attorney, advanced medical directive or any other estate planning document, I also recognize not all of you will.  If you are working with an attorney, it is highly likely your Will will be notarized.  If you are drafting it yourself or using some online program, should you have it notarized?

Legally, there is no requirement that a will be notarized.  It must, however, have two witnesses who are unrelated to the will.  You should list their names in print and their address so that they are easier to track down if there is a challenge to your will. 

So, if legally you don't need it to be notarized, why are attorneys notarizing the wills they draft?  This is over-simplifying the issues but to be brief: it is much more difficult to challenge a notarized will than a non-notarized will.  A notarized will becomes "self-proving", meaning that you don't need your witnesses to appear in court to testify that they did, in fact, witness you signing the will.  In addition, the notary can act as a back-up witness.  For example, if one of your witnesses did not properly witness the will or is unavailable to testify to the validity of the will, the notary may be able to act as a witness in addition to the two witnesses listed on your will. 

It may be a bit more of a hassle to have a will notarized but in the long run, it affords your Will added protection and will likely make the process easier on your loved ones. 

If you are looking at drafting a will or other estate planning document and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.