How to get through the holidays during a divorce

Everyone who is separated and going through a divorce with children  faces the major issue of making it through the holidays.  Here are a few tips to make sure your holidays are as peaceful as possible.

Agree.  If at all possible, put your emotions aside and come to a visitation/custody agreement for the holidays.  It is extremely tough, but you should do it.  Your entire family especially the children, will have a happier, more peaceful holiday season if mom and dad can come to an agreement about how to handle that season.  Focus on your children rather than your soon to be ex-spouse.

Put it in writing.  Once you've come to the agreement, put it in writing with as much detail as possible.  Include pick-up and drop-off times and locations.  Include a daily phone call with the other parent.  Include what will happen in case of an emergency. 

Be prepared for questions.  You will likely get questions from your children about why the whole family is not together on Christmas day or New Years eve.  Talk with your spouse, if at all possible, and try to agree on how you will both handle those questions.  Leave the name calling and negative comments for conversation with your mom or best friend, not in front of your children.  If you and your spouse can come across as a united front on how to handle these types of questions, it will hopefully make life a little easier for your children.

Cherish your time with your children.  If you agree that the children are with your ex-spouse on Christmas day, it may be a tough day emotionally for you.  Please don't let that interfere with the time you are with your children, like Christmas eve.  Make the moments you have your children with you special for all involved and remember those moments when your children are with the other parent.

Baudean Law, PLLC wishes you all the happiest of holidays even if you are going through a tough time.  We are happy to help you work through the details of a holiday visitation agreement.  We can be reached at clbaudean@baudeanlaw.com or (804) 447-0146.

How long until my divorce will be final?

Once you have decided to separate from your spouse (see earlier post about speaking with an attorney prior to separation), your divorce proceedings will begin and you will likely be anxiously anticipating the resolution of those proceedings.   

The amount of time it takes to resolve your divorce depends on a lot of factors.  The biggest factor is each party's position about the divorce.  Does one spouse want the divorce and the other does not?  Do both spouses want custody of the children?  Do both spouses want certain properties?  The more issues that the parties disagree on, the longer it will take to resolve the divorce.

Here's a brief timeline (ESTIMATE) of divorce proceedings.  This is only an estimate and the actual timeline will vary in each and every case.  At any point in time, if the parties fully agree on issues, they can form an agreement and avoid court hearings. 

Upon separation, you can request a pendente lite hearing after which the judge can make temporary determinations and awards.  These can include who will have custody of the children pending the resolution of the divorce, who will pay the mortgage, if one spouse is to pay another spouse any money pending the resolution of the home, who will have exclusive possession of the marital home, etc.  This will likely take place within a few months of your separation.  While it is ideal to have this hearing as soon as possible, it depends largely on the court's schedule and the length of time needed for the hearing.

If you do not have minor children, after 6 months of separation and the execution of a property settlement agreement, the parties can submit the Final Decree of Divorce for entry.  Depending on the judge's docket, that decree could be entered within a week or it may take a couple of months before it is entered.  If there are issues with the evidence in the case or any of the pleadings, the Court will not sign the Final Decree of Divorce until those issues are resolved and the decree is ripe to be entered.

If you have minor children OR you do not have a property settlement agreement, you can submit the Final Decree of Divorce for entry upon the expiration of one year from the date of separation.

If you do not have a property settlement agreement and there is property to be distributed or other issues to be decided (support, custody, etc.), you will need to set a hearing for the Court to determine resolution of these issues.  These hearings can last a couple of hours or last multiple days.  Scheduling of this will depend in large part on the court's schedule.  However, you should expect at least 3 - 6 months from the time you are ready to set the hearing before the hearing will actually occur.  Once all issues have been decided by the court and upon the expiration of one year from the date of separation, you can submit the Final Decree of Divorce for entry. 

From the date of separation, your divorce may be final anywhere from 6 months to a couple of years later.  At the beginning of your separation, an attorney can give you a vague estimate about the length of time they expect your divorce to take.  However, as the case proceeds, that estimate may change significantly.  Regardless, when separating from your spouse you should be mentally and emotionally prepared for the divorce case to take a significant amount of time to resolve. 

How to Pick the Right Attorney for You

When you have a legal issue and you've decided it's time for you to talk with an attorney, the next question you come across is "How do I pick the right one?"

There are plenty of competent attorneys out there, but how do you know you're picking the right one for you and your specific problem or issue?  First,when you meet with a lawyer, you should approach it as an interview (you are, after all, going to be hiring someone).  Make a list of questions you want answers to before you decide whether or not you want to hire a particular attorney.  Some questions you may want answers to are: What are your fees?  What is your approach?  How often can I expect to hear from you and how long do you typically take to return phone calls? When creating your list of questions, try your best to invision what it is you expect out of your attorney-client relationship.  Make sure you let the attorney know your expectations.  An honest attorney may have to tell you that your expectations are unrealistic and likely will not be met (you should then decide if you want to re-visit your expectations and adjust them or move on to another attorney).  The more thorough you are at the beginning of the relationship, the greater likelihood you will have a smooth and successful relationships.  Most attorneys will not mind answering these questions before you hire them and if they are not willing to answer those questions, they may not be the best fit for you. 

You should not limit your interview to one attorney.  If you have never dealt with the legal field, you have no idea what to expect from an attorney.  By talking with multiple attorneys, it will give you something to compare to when deciding which attorney will be the best fit for you.  Also, be prepared for the attorneys to ask you questions as well; if it is going to be a smooth and successful relationship the attorney needs to know your expectations up front as well.

Now that you have your questions and are prepared for a meeting, how do you choose who to meet with?  Referrals are a wonderful source of suggestions for clients.  Talk with your friends, family, church members, co-workers (if appropriate), etc. and see if anyone has worked with an attorney in the past and had a successful relationship.  Call your local bar association and ask for a referral (sometimes a fee may be involved).  Search Avvo.com for a local lawyer who practices in your area of law.  If you know an attorney who doesn't practice in your area of law, ask them if they have any suggestions.

Don't settle for an attorney who you are not entirely happy with.  Attorney client relationships typically last a long period of time and involve a great deal or teamwork and communication.  If you are not happy with the attorney in the beginning, your expectations probably will not be met long term. 

"I have a legal problem: At what point do I talk to a lawyer?"

Most of my blog posts are more or less specific to one area of law.  This post is intended to be broad.  For additional information, you are welcome to contact my office or another attorney.

Regardless of what it is, you may find yourself in the position that you suddenly realize you have a legal problem.  That problem could be that you were speeding and got a ticket, you've decided you might be interested in divorce, you suddenly realized you don't have a will, etc.  Typically the next thought is, what do I do about my legal problem?

While it may be tempting to say "I'll try to handle it myself, first", you should seriously consider saying to yourself "I need to talk with an attorney as soon as possible."  This does not mean, I need to retain an attorney as soon as possible; it simply means, you should speak with an attorney as soon as possible.

Yes, you may be charged for a consultation (or you may be offered a free consultation), but it will almost always save you money down the road.  The reason for this is that as soon as you realize there is a legal problem, you could be doing or saying things that harm yourself or your case without even realizing it.

For example, you've decided you want a divorce and before speaking with an attorney, you leave your spouse and move out of the marital home.  You could possibly be subjecting yourself to liability and a fault-based divorce.  By speaking with a lawyer, they can listen to all of the facts and tell you the best way to remove yourself from the marriage while minimizing the likelihood that you would be liable for a fault based divorce.

Another example, you've been arrested (maybe a felony, maybe just a misdemeanor) and the police officer says: "Just tell us what happened and we'll let you off easy."  You may be admitting to crimes you did not commit and you may not be fully aware of your right to remain silent.  By speaking with an attorney, that attorney can analyze your situation to determine if it is best for you to speak with the police officer or if it is best for you to remain silent.

At the beginning of a legal problem, it may seem manageable and not very complicated.  However, as you proceed through that legal problem, it will inevitably get more complex and difficult.  You would (I think) rather be in a position where you have representation at the beginning, guiding you through the whole problem, that have representation half-way through that results in a lawyer having to fix things that may have already gone wrong but could have been prevented.

Many attorneys will offer free consultations, or consultations at a reduced rate.  Even if you do not retain an attorney in the beginning, you should certainly consider speaking with one as soon as possible so that you are aware of your rights and responsibilitiess as you move forward. 

How you could be waiving attorney client privilege without knowing it

Most people have heard of "attorney-client privilege".  To oversimplify the privilege, any communications you have with your attorney are confidential and are therefore, inadmissible in court.  This means, typically, if you confess to a crime to your attorney, that is confidential information that cannot be revealed.  Attorney client privilege is an important aspect of legal representation and that privilege should be closely guarded by both clients and attorneys.

Attorney client privilege, however, is only a privilege as long as you do not waive that privilege.  You waive that privilege when you share that information with a third party. That means if your mom is in the room when you tell your attorney something, you may be waiving that privilege as to anything you say.  That also means if you've told your mom the same information you told your attorney, that information is no longer covered by attorney client privilege. 

You may be waiving attorney-client privilege without even realizing it.  Do you use gmail as your email provider?  Have you heard the recent news that gmail "scans" all of their emails?  Have you ever read the entire agreement for your email provider (you know that long agreement after which you clicked the little box that said "Yes, I agree to those terms")?  Did you know that many of these free email providers include in those terms that they can hand over any of your emails to anyone they please at anytime?  This is not to say you can never use that email to communicate with your attorney.  You just need to be aware of the fact that  any information you convey in those emails could possibly be used against you; be careful.

On a similar side note, keep all of this in mind if you use social media during the time you have legal representation.  Anything you post on social media (i.e. facebook), can and likely WILL be used against you.  Ask your attorney for advice on whether or not you should be using social media and if so, to what extent, during legal procedings.  

Annulment v. Divorce

So your marriage isn't working out, how do you know if you should pursue an annulment or a divorce?

The grounds for an annulment are significantly narrower than grounds for a divorce.  To oversimplify things for the purposes of this post, an annulment basically voids the marriage like it never existed.  A divorce simply terminates the marriage.  Most of the time, people who are seeking to get out of a marriage are going to go down the divorce path rather than pursue an annulment.  However, there are situations in which an annulment may be appropriate. 

In oversimplified terms, the grounds for annulment are: if there was no marriage license, if either party was still married to another person, marriage between a brother and sister, marriage between an uncle/niece type relationship, marriage when either party is under 18, lack of consent (because of mental incapacity or infirmity), if either party was a convicted of a felon and the other did not know, if wife was pregnant with another man’s baby and husband did not know or vice versa, if either party had been a prostitute without the other knowing, fraud, duress.  If after obtaining knowledge of any of the above, the parties continue to live together and/or act as a married couple, annulment will likely not be an option. 

Divorce, on the other hand, can be decreed for a multitude of reasons including that the parties simply had irreconcilable differences and separated (though there are minimum separation requirements prior to obtaining a divorce on this ground).  Divorce is typically a longer process and may be more complicated, though not necessarily.

If you are unhappy in your marriage and are looking to terminate it, consult with an attorney to determine the best possible process for you to pursue. 

Pondering divorce? May want to meet with an attorney ASAP

Are you pondering a divorce?  If you are seriously thinking about divorcing your spouse, you may want to meet with an attorney as soon as possible.

Meeting with an attorney is confidential and by no means translates into having absolutely decided to divorce your spouse.  During you decision making process, an attorney can provide a great deal of guidance and advice relating to not only the divorce process, but also the effects after the divorce, the timing of leaving your spouse, the manner of leaving your spouse, etc.

It is at this time, the decision making process and the initiating of the divorce, that many people make mistakes that can hurt them legally during the divorce process.  An attorney can help you determine how to "separate" depending on your financial situation, the incomes of you and your spouse, your children's situations, etc. so that you are protecting your legal rights down the road.  For instance, you may not want to leave the marital residence if that is where your children are residing, depending on the totality of the circumstances.  You also may believe you can't afford a divorce financially.  An attorney can help you understand your different options to determine if there is a way to afford a divorce.   Another example: if you leave your spouse, you may be setting yourself up for your spouse to divorce you based on desertion (again, depending on the totality of the circumstances).

Attorney's are not just there for the actual divorcing of you and your spouse, they can help you prior to your separation, during the separation and divorce, as well as after the divorce.  If you are contemplating a divorce, you may be smart to go ahead and meet with an attorney who can help you navigate this tough time. 

Theories of Sentencing

A crime has been committed.  The defendant has been charged, tried and convicted.  The next phase: sentencing.  How should this person be punished?  What do we hope to obtain from their sentence?  Why do some people, who are convicted of similar crimes, have such drastically different sentences?

Sentencing, in Virginia and similarly throughout the country, is based on four main theories.  Deterrence, Incapacitation, Punishment and Rehabilitation are all typically considered when determining what a person's sentence should be.

Deterrence - This is meant to deter future crimes by not only this individual person, but also others who may be enticed to commit the same or similar crime in the future.  We, as a society, at least theoretically, want to make sure the sentence deters that individual and other individuals from committing that type of crime in the future.  We want to reduce crime in general in our society.

Incapacitation - This is meant to deter future crimes as well.  We want, again at least theoretically, to remove this individual from society to ensure that this individual does commit crimes in the future.  This begs the question, in my opinion, when is it ever time to allow this individual to return to society?  How do we know we have incapacitated him for long enough?  Nevertheless, this is to be considered when crafting a sentence for a criminal defendant.

Punishment - This is simply meant to punish the individual for the crime committed.  What degree of crime was it? Did they kill someone?  Did they injure someone?  Did they steal $5 or $50,000?  Should this make a difference as to sentence?  Society has determined over time certain crimes they think are more heinous than others and therefore, warrant a harsher sentence.  In large part, although not exclusively, this is played out through the punishment theory.

Rehabilitation - This is meant to help an individual become a "better person" and reduce the likelihood that they will commit crimes in the future.  Some say that not all criminal defendants can be rehabilitated.  Some criminal defendants, however, such as criminal defendants who are addicted to drugs, can be rehabilitated through services such as therapy.

All four of those theories are the basis for crafting sentences in Virginia.  Some apply to a certain criminal defendant than others but all should be considered and addressed by your attorney in a sentencing hearing. 

If you have been charged with a crime, seek the advice of counsel as soon as possible to ensure your rights are protected throughout the entire process. 

Driving and texting - A primary offense

So I'm sure you've all heard that it is now against the law to text while driving; this includes reading emails, by the way.  However, it's not against the law to use your phone as a GPS or to dial a phone number.

First of all, it has been against the law to do these things for quite some time now.  Previously, it was a secondary offense - meaning you could not get pulled over just for texting and driving; you had to be breaking the law in another way as well.  Now, it is a primary offense - meaning if a police officer has reasonable suspicion that you are texting while driving, you can be pulled over.

The big picture is this: there is another offense out there which police officers only have to have reasonable suspicion to pull you over for.  This could lead to much more serious charges once you have been stopped on the basis of reasonable suspicion, but that issue is for another day.

The short term picture is this: how will police officers prove that you were texting or emailing and not dialing a phone number?  Even more interesting, how could they prove you were reading an email?  It's not as if they can pull up the halfway typed text message?  Is it enough to show you have a recent email or text to say that you were reading that on your phone?  That cannot be the case.  But then, how will they prove these types of offenses?  The answer to that question, I do not know but I suspect we will find out in the near future as more and more of these cases go to court and the Commonwealth has the burden to prove their case.

Either way, it is still illegal to text or email on your phone while driving.  And all the police officer needs to pull you over is reasonable suspicion that that's what you were doing.  If you are charged with a violation of this law, you should seek the advice of an attorney prior to your court case to ensure your rights are protected. 

Virginia as a Right to Work State

Virginia, as you may know, is a "Right to Work" state.  The term can have a complicated root and definition but for the purposes of this article, it means in Virginia, you can terminated from your job for no reason at all.  This means that tomorrow morning your boss could decide, for no reason, to fire you.  You would have little, if any, recourse in that situation (although you should always consult with an attorney regarding your specific circumstances).

Although you can be terminated for no reason at all, you still cannot be terminated for improper reasons.  This means you cannot be terminated due to your race, age, national origin, gender, etc.  The problem with this is that it becomes very difficult to prove that you were terminated for an illegal reason because your employer does not have to have any reason at all to terminate you.

If you have been terminated from your job, speak with an attorney as soon as possible to determine what rights you may have. 

Why Should You Set Up A Trust?

There are many, many types of trusts but for the purposes of this post we are talking about simple trusts, either created by you during your lifetime or created upon your death through your will (see earlier posts regarding wills).

An inter vivos trust, or living trust, is created while you are living.  This is simply set up for you to transfer your property to.  The trust will have a trustee, who controls all of the property in the trust, and a beneficiary.  You many want to set this up for a couple of reasons; the biggest reason is to save your family the trouble of dealing with the probate process upon your death.  Trusts are also more difficult to challenge than a will, though certainly not impossible, and may be a good idea if you expect someone to challenge your will.  Keep in mind, however, trusts can be expensive to maintain and will have certain tax consequences that you should consider prior to creating a trust.

You can also create a trust through your will that will be created upon your death.  You would typically do this if you want to give your property to someone, such as your young children, but want someone more mature, experienced, etc. to handle that property.  In that case, you can set up specifics about how you want the trustee to distribute the property, such as a for education or living expenses, or a certain amount at certain times.  The same consequences mentioned above still apply to this type of trust as well.

If you are looking to create a trust, consult with an attorney to determine the best plan for you and your property. 

Reckless Driving - A Big Deal

I'm sure many of you are aware of the reckless driving charge in Virginia.  Many of you, however, may not realize the significant impact a reckless driving conviction could have on your life.

To start, you could be charged and convicted of reckless driving based on speed alone.  That means even if you were doing everything else correctly, if you were speeding (over 20 mph over the speed limit or over 80 mph regardless of the posted speed limit), you can be convicted of reckless driving.

With a reckless driving conviction comes, among other things, a possible loss of license, possible jail time, possible thousands of dollars in fines and a misdemeanor conviction on your record.  These results can snowball, for instance, if you then decide to drive while not having your license, which will wind up in more charges and more of the above mentioned consequences.  Not to mention if you drive for your job, or have a commercial driver's license, those could be significantly impacted by a reckless driving conviction.

If you are charged with reckless driving, seek the advise of legal counsel prior to your court date to ensure the best possible outcome. 

Spousal Support in Virginia

Spousal support is one of the first thing many people think about when they are getting a divorce: Will I get any? How much?  Will I have to pay spousal support?

Spousal support, in Virginia, is not guaranteed to a spouse upon a divorce.  There are many, many factors that a court must take into account and consider before awarding spousal support.  These factors include, but are not limited to standard of living during the marriage, duration of the marriage, monetary and non-monetary contributions to the well being of the family, earning capacity, etc.

Due to the variety of the factors, it is impossible to predict if a court will award spousal support and if they do award spousal support, how much.  Each case is different and even with similar facts, judges may weigh certain factors differently than other judges which could result in very different decisions.  This is one reason many people attempt to negotiate a spousal support agreement rather than ask the court to decide.  

If you are serious about wanting to pursue spousal support, you should contact an attorney immediately as it is an issue that you could unintentionally waive very early on in the process if you are not careful. 

When can you get an expungement?

I have come across many people who are very misguided on the use of an expungement.  An expungement is a legal tool to have any record of your arrest, trial, etc. removed from all files.  The result is that it basically looks like it never happened.

You were found not guilty, so why would you want an expungement?

Although being found not guilty is a great result, unfortunately, in today's society that is not enough.  Many Americans have forgotten the concept of "innocent until proven guilty" which means when they see you were arrested with a charge, even though you were found not guilty, people assume you did something wrong. 

How do you get an expungement?

There is a process to petition the court for the expungement of your records relating to a charge which was ultimately dismissed.  This process includes serving the Commonwealth Attorney (or other relevant party) and obtaining your fingerprints and records from the Virginia State Police.  The Commonwealth Attorney then has the opportunity to object to having your file expunged.

When is an expungement available?

The standard for an expungement is higher than just being found not guilty.  Expungements are typically reserved for those who are "innocent".  This is a higher standard than being found not guilty.  Obviously to obtain an expungement, you should never plead guilty to the crime as you are admitting you are not innocent.  Typically, if there is a finding of guilt or facts sufficient to prove guilt, you will be unable to obtain an expungement. 

Expungements are controlled by a complicated set of laws and if you are interested in obtaining an expungement, you should speak with an attorney first. 

More than just a DUI

Have you ever thought about all the consequences of a DUI?  Sure, you've thought you could get pulled over or stopped at a check point and get a DUI, lose your license temporarily, pay a fine and probably not spend any time in jail.  A simple DUI, however, is not the only consequence you could face. 

Let's assume you do get a simple first offense DUI, lose your license, pay your fine and move on with life.  Do you know what happens if you get another DUI?  There could be mandatory jail time, you could get your license revoked, not just suspended and possibly face a felony charge instead of just a misdemeanor.

Aside from simply getting a DUI, have you ever considered how life would change if you were to be involved in an accident, even killed someone?  You would be facing a felony and likely spend 10 - 20 years in prison.  And that would be the least of it.  Not only would you have to sit in prison, you would have to live with the fact that you killed someone, that you changed the lives of everyone who knew that person and everyone who knew you.  Your life, your family's lives, your friend's lives would never be the same.  The victim would not get to see the rest of his/her life, his/her family's lives, friend's lives would never be the same.

So when you make the decision to drive after you've been drinking, remember it's not just a DUI you could be facing but you could be making a decision that will change the rest of your life. 

Why you should consult with an attorney on even a minor charge - The trial

So you've prepared for the case to the best of your ability and you are nervously awaiting the date of your trial.  Do you know what to expect?  In general district court it can get pretty chaotic and intimidating.  Do you know how to address the judge?  Do you know what evidence you are allowed to present and when you present it?  How do you know when it's your turn to talk and when it's the prosecutor's time to talk?

An attorney is trained and knows all of these things.  Not only do you have better preparation having prepared with an attorney, the process will go much smoother having someone by your side to explain not only the law, but the process.

Your attorney knows the evidentiary rules and how to present evidence to a judge.  Aside from the actual trial, your attorney knows how to negotiate a plea with the prosecutor, if that the is best route to take, and what is an acceptable plea to take.

Just as importantly, after your trial, your attorney can interpret and explain to you the consequences of the result.  For example, your attorney can give you more details about what it means to be ordered to do community service or your requirements for probation.  This is key in ensuring you do not get in more trouble in the future.  

Why you should consult with an attorney on even a minor charge - Preparing the case

Now that we've talked about understanding the charge and possible collateral consequences, this post will discuss the process of preparing your case for trial and why consulting with an attorney could make a huge difference.  Picture yourself in this scenario: you have been charged with driving under the influence and decide it's no big deal, you can handle this without an attorney.  What would your next step be?

An attorney should always know what the next step is.  It may be that you interview and subpoena witnesses, it may be that you speak with the Commonwealth Attorney, etc.  The process of preparing the case is essential to the outcome of the case.  For example, let's say you have a friend who tells you he'll come to court and testify that you were never actually driving the car.  That sounds great, right?  Do you know how to ensure his presence at trial?  Or are you simply taking his word for it that he'll show up on your trial date? Do you know what questions you can ask that witness on the stand?  Do you know how to prepare that witness for the cross examination he will endure by the prosecution?

There is a lot that goes into preparing for a case even on a minor charge.  It may appear simple.  However, there are a lot of peculiar things that attorneys know and understand that will increase the chances of your success at trial.

Again, many attorneys will offer an initial consultation for a minimal fee.  No matter how small the charge, it is a good idea to consult with an attorney to determine how to best handle the case at hand. 

Why you should consult with an attorney on even a minor charge -Collateral Consequences

The consequences of a misdemeanor may seem very little and easy to understand.  The possibility of jail time, a fine, etc.  This post continues on why you should consult with an attorney on a misdemeanor charge (see previous post for introduction).

While the penalties set out for misdemeanors may appear to be straight forward, there may be hidden consequences that you are unaware of, which an attorney would be able to advise you on.  For example, if you are convicted of a DUI, any subsequent DUI may come with MANDATORY jail time.  If you are convicted of petit larceny, a subsequent larceny may be a FELONY.  Due to these collateral consequences, it is important you understand the full impact of a conviction before going to court.  An attorney will be aware of these collateral consequences and should advise you as to those consequences.

Further, you should think about the impact a conviction may have on your job, school, career or any future plans you had.  For example, many companies that require you to drive frequently or provide a company car, may be seriously deterred if they see you have been convicted of a DUI.

Consulting with an attorney prior to court will help you see the big picture of the charge you are facing, not just the short term effects of a conviction. 

Why you should consult with an attorney on even a minor charge - Understanding the charge

I have found that many people do not fully understand the benefits of simply consulting with an attorney.  This post is directed at people who have been charged with misdemeanors.  When you are charged with a misdemeanor, a few things could happen: first, you could be facing jail time and found to be indigent, in which case the court will likely appoint you an attorney; second, you could be facing jail time but the court has not found you indigent; third, you could be facing jail time but the Commonwealth Attorney waives any possibility of jail time; and finally, the charge may be so minor that there is no possibility of jail time.  The latter three scenarios means the court does not appoint you a lawyer and you have to decide whether or not you will proceed pro se (without an attorney) or retain an attorney on your own.

Consulting with an attorney does not mean you have to retain that lawyer to represent you.  It simply can mean you meet with an attorney to decide whether or not you are capable of representing yourself or whether you should be represented by an attorney.  The next few blog posts will discuss why it is important that you consult with an attorney regarding these charges.

DUI, DUI 2nd, Refusal, Trespass, Assault, Contributing to the delinquency of a minor, reckless driving, driving on a suspended license.  These are just a few of the misdemeanor charges in Virginia.  While they many appear straight forward based on the name of the charge, there are a ton of intricacies within these charges.  Attorneys are trained to know these intricacies and/or be able to research and understand these intricacies to ensure that the legal system is working properly.  It is important to understand each element of the charge, as well as each possible defense, to determine whether or not you are guilty of the charge.  The first step to defending your rights after being charged with a misdemeanor is to fully understand the charge.

Consulting with an attorney will not only help YOU understand the charge, but, if you decide to retain that attorney, will provide you with someone who fully understands the charge and all of its intricacies. 

Not happy with the result? Know your right to appeal

Your right to appeal is an important one to know and understand.  If you do not achieve your desired result in a court case, contact an attorney as soon as possible to discuss your specific rights to appeal.

In general, any case in general district court can be appealed to Circuit Court.  When this happens, the case is heard over again by a new judge, known as de novo review.  It is typically the same for cases coming up to Circuit Court from Juvenile and Domestic Relations Court.  Keep in mind the time limit on your right to appeal is short, typically ten days.

In the Circuit Court, you typically have a right to appeal to either the Court of Appeals of Virginia or the Supreme Court of Virginia, depending on the nature of your case.  Certain actions, such as a guilty plea on a criminal case, can result in a waiver of your right to appeal.

Be aware of your right to appeal and if you are not happy with the result of a court case, contact an attorney immediately to determine if you can appeal and how to go about that process. 

Consequences of failing to follow a court order

In Virginia, there are a variety of consequences that may result from failing to follow a court order.  These consequences vary in large part, depending on the type of court order (criminal, custody, child support, etc.).  Therefore, the consequences discussed below are discussed as consequences generally.  You should consult an attorney regarding the specific court order at issue in your case.

1. The court may find you in contempt.  This could be a misdemeanor depending on the type of contempt found.

2.  After finding you in contempt, the court may order you to pay a fine.  Keep in mind this is ANOTHER court order that must be followed.

3.  The court may order you to do specific things (this is more common in family law cases and criminal cases), such as serve additional time in jail/prison, communicate with your ex-spouse only via email, etc.  This can vary quite a bit.

4.  After finding you in contempt, sentence you to either a period of time in jail (up to 12 months) or hold you in jail until you comply with the court order.

There may be additional consequences you will face depending on your court order.  However, these are common consequences.  Court orders are important and are put in place for a reason; they should be followed and you may face serious consequences if you decide to disobey the order of the court.  Again, contact an attorney to discuss your matter in further detail. 

Determining custody in Virginia

In Virginia, we have a standard called the best interests of the children for determining custody.  This means when a court has custody before it, whether it's through a divorce proceeding or otherwise, the Court must look at what the best interests of the children are before they determine the custody and visitation arrangements.

Now the question is, what does "best interests of the child" mean?

Virginia has a statute setting out what factors should be considered in determining the best interests of the children.  The Courts MUST consider all of the following factors: age and physical and mental condition of each child, age and physical and mental condition of each parent, the relationship between the child and the parent, the needs of the child, the role that each parent has played and will play in the upbringing of the child, the propensity of each parent to promote the relationship between the child and the other parent, the ability and desire of each parent to maintain a close relationship with the child, the preferences of the child, if reasonable and appropriate, any history of family abuse and any other factor the court deems necessary.

These factors, theoretically, should provide an overall picture of the child's life and environments with both parents.  Custody is always a difficult issue; however, I hope this provides some insight into what a judge takes into account when deciding the custody arrangement for your children. 

Sentencing in Virginia

Sentencing in the world of criminal defense always seems to be somewhat convoluted.  In Las Vegas, there are many people, aside from celebrities who make the news, who are being released from jail/prison after serving only a fraction of their sentence.  Many people are released on parole after a certain amount of time served.  It seems it is impossible to predict how much time a person will actually serve. 

In Virginia, parole was abolished in 1995.  For people who committed offenses prior to January 1, 1995 they may still be eligible to be released on parole.  However, for those who committed offenses after January 1, 1995, there is essentially no possibility of parole. 

In exchange for abolishing parole, Virginia enacted something called Truth in Sentencing.  This provides a somewhat more standard procedure for determining how much time people will actually serve.  Based on this, everyone convicted of a misdemeanor is required to serve AT LEAST 50% of the time to which they were sentenced.  Similarly, everyone convicted of a felony is required to serve AT LEAST 85% of the time to which they were sentenced.  These times are typically calculated by the jail or prison and the actual amount of time served may still vary somewhat. 

Due to Virginia's Truth in Sentencing and the abolishment of parole, it is significantly easier to predict how much time someone will serve for a crime.  Remember to always contact an attorney for legal advice regarding any sentence you may be facing.