Monday, December 15, 2014

Questions to Ask Yourself Before Christmas Break for your Children

If you have a custody agreement or order in place, here are a few questions you should be able to answer BEFORE your child's Christmas break starts.

1.  What dates are the children with me and what dates are they with their other parent over the winter break?
2.  On dates that the children move from one house to another, what time does this move take place?
3.  On dates that the children move from one house to another, who is responsible for the transportation and/or where do I meet the other parent?
4.  How do we handle Christmas and Christmas Eve if the children are not with me for those nights?  Are we doing a separate Christmas celebration before or after?
5.  Do we have a plan for the children to talk to both of their parents on Christmas Eve or Christmas Day?
6.  Have I reviewed the plan with the children's other parent to ensure we are on the same page?

Custody agreement and court orders are great to have in place but, by nature of the circumstances, will never include every detail on how to handle things that come up.  It's a good idea to work with the other parent now, rather than later, to make sure you both understand your responsibilities over the winter break.

The last thing you want is for your children to be uncertain of who's house they will be at and when, all while they are getting excited for Christmas to be here.  You also don't want to have to be dealing with arguing over details when you are trying to get in the Christmas spirit and enjoy your holidays as well.

Answer those questions to yourself and then have a conversation with your children's other parent to make sure you both agree on all of the the answers.  This will help ensure you have a great, peaceful holiday and more importantly, your children will too.

If you need help interpreting your agreement or coming to a new one quickly, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Wednesday, November 5, 2014

Think Twice Before Modifying Your Car

Most people are aware that many modifications to cars are illegal: a louder exhaust, different headlights, license plate covers, etc.  However, most people are also willing to risk that minor traffic ticket to have their car look a certain way.  There may be more serious consequences to those "minor" modifications. 

In the past, we have certainly advocated that you prevent all possible circumstances in which you would drive after drinking (if you haven't seen those posts, here's a good start for you:  More Than Just A DUI).  What we have not yet addressed is how some DUI arrests come about. 

Aside from some exceptions (such as DUI checkpoints), the police officer must have reasonable suspicion and/or probable cause (depending on the situation) to pull you over while you are driving.  They cannot randomly target you to pull you over to see if you have been drinking (again, there are some exceptions to this).  So here is how the scenario plays out: you decided you wanted a modified exhaust for your car and this exhaust happens to be an illegal modification.  A few weeks, months, etc. later you go to happy hour with co-workers after a long day and have a couple beers.  You've paced yourself and feel fine to drive so you get in your car to drive home. 

Let's stop here for a moment for a brief note.  You should realize you may FEEL fine to drive and may not actually be fine to drive.  Most people do not get into a car after happy hour thinking they should not be driving and decide to drive anyways. 

Now, back to our scenario.  You are driving home and are not swerving or showing any other signs that you are intoxicated or have had a couple of drinks.  You don't go through a checkpoint.  You do, however, pass a police officer, who happens to suspect that your exhaust is an illegal modification to your car.  That police officer then pulls you over to ticket you for your illegal exhaust (this is the minor ticket you decided was worth risking for having your car the way you like).  During this minor traffic stop, the police officer notices a smell of alcohol on your breath.  From here, it all of the sudden turns from a minor traffic stop to a DUI investigation in which you may be subjected to field sobriety tests, breathalyzers and potentially arrested for a DUI. 

The point of this post is to bring awareness to you that minor modifications to vehicles may have more long term, serious consequences that you should seriously consider before making those modifications.  Our bigger message, however, is to continue to raise awareness to you and the community that having a couple of drinks and then driving is a bad idea all around. 

If you have any questions about this post, have been charged with a minor traffic offense or a DUI and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com

Tuesday, November 4, 2014

3 Things to Know Before You Meet with a Divorce Attorney

Many of my clients come to me and are nervous about meeting with me, a divorce attorney.  This tends to come from not being sure what to expect from meeting with a divorce attorney.  As I've said before, it is important you at least meet with a divorce attorney very early on in the process (or better yet, BEFORE you begin the process).  Find out more about that, here

If you are considering divorce, here's a few things to know before you meet with an attorney and what to expect from that meeting.  Keep in mind, however, each attorney operates slightly differently and each case is unique so you're initial meeting may vary to some degree.

1.  Be ready to tell your story.
When I first meet with a potential client, it is important that I gather as much information as possible.  Don't worry about having every detail down pat but do go into the meeting knowing the basics of how you came into the marriage and how the marriage has changed, what has caused you to consider divorce, etc.

2.  Bring some questions.
We, attorneys as a whole, want to be helpful.  Bring some questions that you have to your initial meeting. Make a list of questions you have about the process, the attorney and your specific situation.  We will typically do our best to answer your questions that you bring to us.  However, you should know that each divorce case is different, unique and in some way complicated.  As a result of that, some of the answers to your questions may not be clear at the initial meeting; the attorney may need to research the law or may need some additional information from you before being able to provide you a complete answer.

3.  Remember confidentiality. 
Some people are nervous about meeting with an attorney because they are providing that attorney very personal, intimate information about their lives.  Remember that your meeting with the attorney, even if you decide not to retain that attorney, is confidential and cannot be shared with anyone else at any time.  Also remember that divorce attorneys handle a lot of divorce cases.  We are in the business of protecting you, not judging you.  After considering these things, if you still do not feel comfortable being honest and providing that information to an attorney, that attorney may not be the right fit for you.  

At the conclusion of your initial consultation, the decision rests in your hands.  If you do not feel comfortable or for any reason are hesitant about retaining that attorney, you are under no obligation to hire them.  Even if you are comfortable and feel positively about the meeting, you may still want to meet with other attorneys to determine which attorney is the best fit. 

If you are contemplating divorce or are currently involved in a divorce or custody case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, October 20, 2014

What To Do With Your Will

Having a will is a great thing, as I'm sure you've noticed from my previous posts.  However, getting that will drafted and signed is only half the battle.  Here's a few tips for what to do now that you have your will in hand.

1.  Find a safe place to keep it.
Take some time to think about your lifestyle and your family members' lifestyles and determine the best place to store your original will.  One place a lot of people think of but should probably NOT use is a safe deposit box.  If your family members are unable to access your safe deposit box without you, they will not be able to obtain the will if you pass away (same goes for your advanced medical directive and power of attorney).  You probably want to keep it somewhere safe, such as a an actual safe and want to keep in mind that it should be durable.  One potentially good option is to store it in a fireproof safe. 

2.  Make sure your family members know how to find it. 
Once you've determined where to store your will, you want to make sure your family members and/or anyone named in the will know how to access it.  If it is in a fire proof safe, does someone have the code to unlock the safe?  Do they know exactly where you store your fire proof safe?  Your will might not do you any good if no one can find it when it's time to use it. 

3. Give copies to all your family members.
It is often a good idea to give each family member or person who is named in the will a copy of your will.  This may come in handy should your will become lost or accidentally destroyed in the future.  In addition, it will make your wishes and desires less of a shock when the time comes to execute those wishes and desires. 

4.  Talk to your family members about your wishes.
It is usually a good idea to have a conversation with your loved ones about the wishes that you put in your will.  It may give you the opportunity to clear up any vague wishes and make sure your family is on the same page.  While the will gives your wishes and desires enforceability, it creates a calmer, more peaceful time for your family if they already know and understand exactly how you want things to happen. 

A will is a great tool to have for yourself and your family members.  However, taking the above listed actions ensures that your wishes are more understood and heightens the possibility that everything will happen smoothly and exactly as you wish. 

If you would like a consultation on a will or other estate planning documents, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Tuesday, October 14, 2014

5 Things To Do After A Loved One Passes Away

In the weeks and months following the death of a loved one, you may be overwhelmed with what to do next.  It is difficult to deal with your emotions and the legal processes that need to be completed. Here's a list of a few things you may need to be taking care of after a loved one passes away. 

1.  Obtain the death certificate. 
You will need to obtain the death certificate for your loved one and most likely, you will need more than one.  The following people may require a death certificate: the court (where your loved one's property will be distributed through probate), the banks (for any joint bank accounts and/or safe deposit boxes), stock companies with whom your loved one held stock, etc.  While you can order additional death certificates in the future, it's a good idea to try to figure out about how many you will need and order them all at once. 

2.  Schedule an appointment with a probate and/or estate planning attorney. 
You will want to sit down with your attorney to go over the details of how your loved one's property is going to be distributed.  You should do this regardless of whether you will be the person administering the estate because you want to ensure your property rights will be protected as well.  An attorney will give you a basic idea of what the legal process will look like for you as the property is distributed over the coming months or years.

3.  Schedule an appointment with the probate court.
The first step to distributing property is to schedule an appointment with the probate court.  You will need to bring the original will, the death certificate and a check (for an amount the court will specify).  When you schedule your appointment, make sure you ask what all the court requires you to bring to the meeting so that you do not have to schedule a second meeting.

4.  Get organized. 
Going through probate, if you are administering the estate (i.e., making the distributions), you will need to have very detailed records of all property owned by your loved one, any property earned after your loved one's passing and any property distributed after your loved one's passing.  The sooner you get all of the property organized and have a method to maintain your records, the better off you will be in the long run.  This is something you may want to talk with your attorney about while you are doing #2 above. 

5.  Revisit your will, advanced medical directive and power of attorney.
When a close loved one passes away, it may affect your current estate plan.  If that person was designated as your power of attorney, you may want to have a new power of attorney drawn up so that it remains valid and in effect.  It may also effect your will and how your property is distributed, or more importantly, who will be taking care of your children should something happen to you.  

There is obviously much more that will likely need to be done; however, by doing these 5 things you should be headed in the right direction to obtain some closure and honor your loved one's wishes.  

If you have recently had a love one pass away and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Tuesday, October 7, 2014

3 Things You Should Consider Including in Your Property Settlement Agreement

Hopefully during your divorce proceedings you and your soon to be ex-spouse will be able to come to an agreement on all aspects of the divorce: property distribution, child custody, support, etc.  If you are, then you (or hopefully, your attorney) will be drafting your property settlement agreement (also called a separation agreement).  Here are three things you should consider including in your agreement. 

1. Neither parent is to have overnight guests of the opposite sex while the child is in their care.
While this may sound unreasonable, it protects your children in a lot of ways.  The court may order this but if you are in the process of settling your divorce case this is something you and your soon to be ex-spouse should consider adding to your agreement. 

2. Neither parent is to consume alcohol or illegal drugs while the child is in their care. 
This may sound obvious but it is important to put in your agreement if you think there may be an issue with this.  You can add a similar provision that has whatever language you want - if you agree that it is okay to have a beer or glass of wine while the child is in your care, maybe you limit the language to illegal drugs.  Either way, this is a good idea to consider putting in your agreement.

3. Neither parent is to disparage the other in front of the children.
We all know everyone needs to vent every now and then and there is no problem with that.  There may be a problem, however, if it is done in front of the children.  Saying negative comments about the other parent when the children can hear can cause long term consequences and is generally not a good idea.  

These are important for a couple of reasons.  First, it opens the lines of communication to ensure you and your soon to be ex-spouse are actually on the same page and agree with how things will work from here on out.  Second, if one of those issues becomes a problem in the future, you now have a way to enforce those concepts through your agreement, rather than being forced to go to the court to modify the terms of the custody or visitation of your child, if applicable.  Even if you think these concepts are a given and you and your soon to be ex-spouse are definitely on the same page, if it is not in your agreement, it may not be enforceable in the future. 

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 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.

Tuesday, August 19, 2014

How do I get a custody or visitation case started?

This is usually how a custody or visitation case starts: a parent thinks to himself or herself "I have a child and I am not in a relationship with the other parent; I know something needs to be done to formalize some sort of arrangement but what do I do?"

First, you'll need to figure out what court you should be looking at (read here for more information on that). 

Next, you'll need to determine what it is you want to formalize. 

Do you know who the father is or do you know that you are the father?  If not, you may need to file a petition for adjudication of paternity.  This is typically a form that you fill out in the Juvenile and Domestic Relations Court asking the court to order a paternity test (DNA test) to determine who the father of the child is.  Once the test is complete, you would then be asking the court to "order" that whoever that person is, is the father of the child. 

Once the father is determined, what do you want done?  Custody is divided into two parts: legal custody is the determination of which parent, or both, gets to make major life decisions on the raising of the child (what religious denomination, what doctor, etc.)  Physical custody is who the child resides with the majority of the time.  If you want the court to determine these types of issues, you will need to petition the court to determine custody. 

Visitation is a separate issue and determines how much time and when the child will spend with the parent he/she does not permanently reside.  If you want visitation to be determined, you will also need to petition the court to determine visitation. 

Typically the final issue parents want a court to decide is child support.  This is the amount of money the parent with whom the child does not regularly reside will pay to the parent with whom the child resides the majority of the time in order to support the child.  This money is for the support of the child but is paid to the other parent, not the child directly.  This amount is typically determined by a formula but can be adjusted for various reasons. 

To sum it up, if you want everything to be determined and formalized, you will need to 1) petition for paternity, 2) petition for custody, 3) petition for visitation and 4) petition for child support.  These, most likely, will technically be different cases but will likely all be heard in the same hearing and a determination will be made on all in the same day (occasionally this is not possible and there will be separate hearing dates).  These are simply the documents to get the process started.  From here you will need to be able to prove your case and show the court what the best interests of your children are and how you want these cases to be determined. 

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

Monday, August 11, 2014

Does your custody order address the school year in enough detail?

Summer is coming to an end and, inevitably, you and your ex-spouse have had to work together to make the custody arrangements work throughout the summer.  The school year is now approaching; are you and you child's other parent on the same page with how things will work?  Talking through the details and making sure you have a clear understanding will help your child maintain stability and a sense of normalcy as the school year begins.  Here are a few things you may need to discuss and/or have the court address:

1.  Weekend visitation: What time does weekend visitation start and end?  Are the times you have used in the past still appropriate to allow the child enough time to prepare for the beginning of a new school week each week?  Have you discussed and is there an understanding about when the child will complete any homework he has over the weekend? 

2.  Sick days:  Have you and your child's other parent discussed what will happen if the child is sick?  Will the responsibility fall on the parent who has the child in his/her care and custody at the time or will one parent always take off to stay with the child? 

3.  School functions and reports:  Will you and your child's other parent attend school functions together?  Will you both go but attend separately or will you alternate school functions?  The same goes with parent-teacher conferences; who will attend and what role will each parent play?  Who will have primary access to report cards?  Did you list the other parent as a parent with the school so that he/she may have access to school records?

4.  Extracurricular activities:  What happens when your child decides he wants to join the soccer team and has games every Saturday morning?  Will the child attend his games regardless of which parent he is with or will one parent not allow the child to attend the games during his/her visitation time?  Who is going to pay for these activities?

Custody orders provide you and your child's other parent with a basic structure of how the child's life will look.  They do not, however, provide every detail and issue that you may encounter.  They also may lose their applicability as the child grows older and the circumstances change.  It's important, as early as possible, to develop a communication system with the other parent (whether it is by phone, in person meetings or emails) to figure out the details and make sure every understands the arrangements.  If you are unable to come to an understanding and agreement, it may be time to look back to the courts for additional help.

If you are involved in a custody or divorce dispute and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Thursday, July 24, 2014

What can employers NOT fire you for?

In Virginia, employment is "at-will".  But what exactly does that mean?  It means employers can terminate you for just about any reason or no reason at all.  There are, however, a few exceptions to this rule.  So what exactly are the reasons that employers cannot use to fire you?  Here's a list of a few of those reasons:

1) Age - you cannot be fired because you are a certain age (typically, these cases involve older employees rather than younger employees)
2) Gender - you cannot be fired because you are a woman or because you are a man (this typically extends to things that occur because of your gender such as pregnancy)
3) Race/National Origin - you cannot be fired because you are of a certain race or national origin
4) Disability - you cannot be fired because you have a disability
5) Religion - you cannot be fired because of your religion or your religion practices

On top of these reasons, you cannot be fired in retaliation for opposing firings or discrimination based on the above listed categories.  For example, if you participate in a co-worker's discrimination case in support of the co-worker, your company cannot fire you for doing so.

These cases are very fact intensive and there may be other limitations on your company terminating you that are not listed above.  If you believe you have been discriminated against or wrongfully terminated, it is best to contact an attorney to discuss your situation.  If you would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Tuesday, July 22, 2014

Why You Should Consult With Multiple Attorneys

Let's say you have a legal problem that needs a solution and you've decided you are going to hire an attorney to help you find that solution.  You walk into a lawyer's office, he/she gives you some brief advice and then asks if you want to retain him/her.  What should you do?

In my opinion, you should meet with multiple attorneys before deciding which one you would like to hire. Every attorney is different.  We all have our own styles and preferences.  We all work differently.  Some attorneys prefer to have communications go through their secretary, some prefer to make phone calls themselves.  Which one of those would you be most comfortable with?  Some attorneys believe amicable resolution (i.e. settlement) may be in your best interest, while some attorneys think you should fight til the end.  Would you prefer to try to settle or do you want to fight no matter what (regardless of the attorney's opinion, this decision is actually YOUR decision to make).  No legal problem has a simple solution and each attorney is going to strategize on how to solve yours.  Do you want to be involved in developing that strategy or do you simply want your attorney to tell you how to move forward?  These things might seem simple and minute but they can affect your overall experience with the legal system in a huge way. 

Picture how different the experience would be if you simply receive a paper from the court in the mail versus having your attorney call you and explain to you what that paper means and how it affects your life.  You should make sure you are comfortable with the attorney and how they practice law BEFORE you retain them.  While you always have the right to fire your attorney and retain a new one, this may end up costing you more money in the long run.  So take up attorneys' offers on free consultations and meet with a few before you decide which one is best for you. 

If you are looking to speak with an attorney and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, July 21, 2014

Custody: Getting Creative

Custody cases can be very difficult for people to handle.  They are emotional, high stakes cases and typically, the parties just want what's best for their children.  The problem is, with the emotions running high between the parties, it can become difficult to articulate what those best interests are. 

Personally, I like to get creative when it comes to custody cases.  Most people know the standard custody arrangement: one person gets primary custody of the child, the other person gets weekend visitation every other weekend and possibly a weeknight dinner.  Just because that is a common arrangement doesn't mean it's what's best for you, your child and your co-parent

Maybe your and your co-parent are capable of being in the same room together.  Maybe we can find a schedule that allows your child to spend ample amount of time with both of his/her parents.  Maybe every other weekend isn't feasible as visitation for you or your co-parent, how can we fix that?  Let's not use the default custody and visitation schedule and let's work together to find a real resolution that can last.  

Having an attorney on your side in a custody case can help you explore creative solutions.  Because we are not as emotionally involved, we can help you think outside the box to figure out the best resolution for your case. 

If you are involved in a divorce or custody dispute and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, July 14, 2014

Can you answer these questions?

Can you answer these questions?  If not, it may be time to talk to an attorney.

If I died yesterday, who would get my property? Who would take care of my children?
If I became incapacitated (can no longer make my own decisions), who would pay my bills?  Who would take care of my physically?
Does my family know if I want extreme life saving measures taken if I am in a hospital?
How much of my ex-spouse's retirement do I get?
Where will my children spend their summer break this year, with me or my ex-spouse?
Who pays for my children's healthcare, me or my ex-spouse?  Who gets the tax credit for my child?

If you can't answer some of these questions, it may be time to meet with an attorney.  The right attorney can help you figure out what you want the answers to these questions to be and how to accomplish those goals.  Whether it is through a custody agreement, a will, a power of attorney or other process, an attorney can make sure you are competent on your wishes and that your family knows those wishes. 

These questions are important and you should know the answers to each and every one of them.  If you would like to speak with us regarding any of the above questions or any questions you have in general, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Wednesday, July 9, 2014

Other Resources You Should Consider Using During a Divorce

Typically, when people hear the word "divorce" they think of the complicated legal process of ending a marriage.  There is, however, much more to a divorce than the legal process and you should look at the process as a whole.  To do that, you may need to consider using some resources other than just an attorney.  Here's an idea of some of those resources:

Therapists.  It may be a good idea for you and your family to attend therapy sessions.  This is especially true for children who are probably struggling with the concept of your divorce.  You could consider individual therapy sessions or family therapy sessions depending on your situation.  Going to a therapist could help you through the whole process.  For example, being able to express your feelings and work through them with a professional may help you think clearer when it comes to the legal process and determining custody or dividing property. 

Financial Planners.  Whether you were in charge of the bills in your marriage or not, a financial planner is someone you should consider meeting with during a divorce.  Everything in your life is changing, and that likely includes your financial circumstances.  Financial planners can help you plan not only for your new financial situation but for your future. 

Community services.  Many counties/cities have a community services board that can provide you with resources.  The biggest one that comes to mind is a co-parenting class.  A co-parenting class is a great way to work through your new relationship with your ex-spouse and your children.  For more information on co-parenting, read here. 

Real Estate Agents, Title Companies, Mortgage Lenders.  Likely, through your divorce you are either moving to a new home or refinancing your current home.  You should consider meeting with multiple professionals in that field to determine the best course of action for you.

Ideally, your attorney will be able to help you find these resources and will collaborate with these professionals, with your permission, to come up with the best plan possible for your future as you go through your divorce and reassemble your life after your divorce.

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

Monday, July 7, 2014

Custody and "Co-parenting"

Now is as good a time as any to work on your co-parenting skills with the other parent of your children.  So what is co-parenting and how can you work on it?

Co-parenting is successfully working with the other parent of your children to raise them in a healthy environment.  It is raising your children as a team even though you are no longer romantically involved.  It is putting your children's needs first even when there are a lot of emotions swimming around in your head. 

So how can you work on co-parenting?  First of all, try to set aside all of the emotions between you and the other parent.  While it is important that you are able to communicate and are cordial with each other, co-parenting is really about focusing on the children's relationships with each parent rather than your own.  Picture how you want the other parent to encourage a relationship between you and your children and do the same.  If you are strong at communicating, talk with the other parent about how you can both encourage healthy relationships between the children and the other parent.  

Come up with a plan.  How can you be a good co-parent?  The answer to that question is different for every client I have so you need to figure out what works for you.  Put it in writing and keep it somewhere that you can look at it for a reminder when things are tough.  Again, if you can, communicate with the other parent and come up with a plan together. 

Take a co-parenting class.  A co-parenting class is a class that teaches you the basics you need to become a successful co-parent.  Even if you've taken one before, it might be time for a refresher.  If you are not sure how to find a class near you, call your local courthouse.  Many times the courts will have a list of co-parenting classes available and can point you in the right direction. 

Co-parenting takes work and it is easy to procrastinate becoming a better one but it is important for your children. 

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

Tuesday, June 24, 2014

Custody dispute: What court do I go to?

When you and the other parent of your child are having a dispute over custody, visitation, child support, etc. the first step is to know what court you should be going to.  The answer is: it depends.

Are you and the other parent married and going through a divorce?  If so, then you have a choice of filing in either the Circuit Court or the Juvenile & Domestic Relations Court.  If you choose the Circuit Court, the custody dispute will be handled in connection with your divorce.  If you choose the Juvenile & Domestic Relations Court, the custody dispute will be handled independently from your divorce. 

Are you and the other parent not married?  If so, you should file in the Juvenile & Domestic Relations Court.

The Juvenile & Domestic Relations Court is a district court and is a lower court than the Circuit Court.  The J&DR courts handle only juvenile matters and family matters.  Depending on which specific court you are in, the process may be somewhat more relaxed and you may have your case heard sooner than if you were in Circuit Court.  Also, because the J&DR court is a lower court than the Circuit Court, either party can appeal the ruling of the J&DR court to the Circuit Court.  This means, if you are unhappy with the result, you can go to the next highest court and have a completely new trial with a new judge. 

Now that you've figured out which court you should be in, how do you know actually WHERE to go.  Typically you need to be in the court for the county or city where the child resides.  Once that is determined, you can go to the Supreme Court of Virginia website and find the physical address for that court.

While these are the basics for determining which court you should file in, you should seek advice from an attorney to determine which court is best for your specific circumstances.  If you are involved in a custody or visitation dispute and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.   

Monday, June 16, 2014

Why you should consult an attorney BEFORE you file for custody

Many clients call me and want to retain me for their upcoming court date to determine custody, visitation, child support, etc.  Very few clients, however, think to make that call BEFORE they file their petition or motion to amend custody.  Here's why you should talk with an attorney first.

1.  It's pretty basic but if you are intent on hiring a particular attorney, you will want to make sure that attorney is available for your court date.  While courts will sometimes allow for a continuance so that your attorney can appear in court, that is not always the case.  If you want a specific attorney, you need them to be involved at the beginning to make sure the court date is a date that are available.

2.  You need to file the right documents.  In the Juvenile and Domestic Relations Court it may appear simple to fill out a motion to amend and you may think you don't need your attorney to help with that.  While most of the time the filing needs to be done by you, the client, you need to know what to put in that motion to amend.  Simply asking for a change in physical custody may not be enough.  You may need to move to amend legal custody as well.  You may or may not want to move to amend child support and visitation at the same time.  Consult with you attorney on what to file prior to actually filing the papers.  It will make the process simpler and clearer for you down the road.

3.  We need time to prepare.  Most of an attorney's work goes on "behind the scenes".  There are deadlines we have to file, such as sending out witness subpeonas (to ensure your witnesses attend court) by a certain deadline.  Perhaps there are discovery deadlines that may pass before you hire an attorney.  The more time you allow an attorney in advance to prepare for your case, the better case you will be able to present.  To hit this point home, at a certain point in each case, many attorneys will decline to represent you simply because they do not have adequate time to prepare a competent case for you.  You certainly do not want to be in a position to not have an attorney because you waited too late.

Depending on your arrangements, it may be slightly more expensive to hire an attorney at the very beginning, or it may be the same cost.  The result of your case, however, can vary significantly depending on what stage you bring an attorney in to represent you.  If you are thinking about filing or have filed a petition or motion to amend custody/visitation/child support and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Tuesday, June 3, 2014

Does your custody arrangement include summer vacations?

Does your custody arrangement, whether by agreement or court order, include provisions for summer vacation?  Now is the time to find out.  Many times summer vacations are left out of the official custody arrangements, usually because people just weren't thinking about that when they were trying to figure out who their child would live with on a regular basis. 

If your custody arrangement does include provisions for summer vacation, great!  Follow the terms of your agreement or court order. 

If your custody arrangement does not include provisions for summer vacation, now is the time to figure out how that will play out.  Depending on where you live, you may have time to have the court decide a vacation schedule.  If not, you should have a serious conversation with the other parent of your child(ren).  If you do not have the ability to have the court decide a vacation schedule, you are going to have to work with your co-parent to determine a schedule that is best for your children.

While you are working with your co-parent, remember that this is all about your children.  You may not want to spend two weeks away from your child but would it be good for your child to go visit their extended family with their other parent?  It may be a burden to adjust your planned vacation, but would adjusting your planned vacation benefit your children?  Try to put aside the emotions that may come up in talking with your child's other parent and focus on your children and their needs.  If you are unsure that you can make this agreement with your co-parent, consider using a mediator, who is a neutral third party who can help you come to an agreement. 

If you are involved in a custody or visitation case and would like more information or a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Friday, May 23, 2014

Things to remember post-divorce

While it may sound like the divorce process is over once the Final Decree of Divorce has been entered, there are a few things you still may need to get done.  Here's a brief list of some of those things:

1.  Update your insurance.  This includes making sure you and, if applicable, your children have adequate health insurance.  Your ex-spouse may be required to carry health insurance for your children or you may be required to carry it.  Either way, you need to update your insurance to make sure you are covered.  This also includes life insurance.  Update your beneficiaries and let your life insurance company know about your divorce to ensure your records are still valid. 

2.  Update your Pay On Death records.  This could include stocks, bank accounts, etc.  Make sure anything you have designated to be disbursed to your husband upon your death is updated and the companies are informed of the divorce.

3.  Update your titles.  This could include the title and mortgage on your home, your car, your boat, etc.  Make sure the documents are executed to separate the property. 

4.  Look at your finances.  Your financial picture has probably changed significantly as a result of your divorce.  Do you have adequate retirement plans in place?  It may be smart to meet with a financial advisor to make a long-term plan for you to be financially stable. 

This list is non-exclusive and you should talk with your attorney about all of the steps that need to be taken post-divorce to ensure everything is in order and you are independently stable.  If you are contemplating divorce, going through a divorce or are recently divorced and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, May 19, 2014

Going through divorce: Can I start dating again?

After the separation of the parties during a divorce, some people, though not all, want to begin dating again as soon as possible.  So, legally, when can you start dating and when is still considered adultery?

While technically, you MAY be able to get away with dating after separation but prior to a final divorce, you may also face negative repercussions to doing so.  If there is any issue with the separation date or other technicality with the divorce, you could face being accused of adultery. Additionally, if the court finds that your post-separation adultery prevented reconciliation, the court may grant your spouse a divorce based on, among other things, post-separation adultery. 

If the court finds that you have committed adultery, there are some potentially serious consequences for you.  The biggest consequence you could face is being denied spousal support.  Depending on your case, this could result in a loss of a fair amount of money to you in your divorce case.

That being said, it is safest to wait to begin dating until the divorce is finalized.  You should always feel welcome, however, to discuss your individual circumstances of your case with your attorney to determine what is best for you individually.

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

Wednesday, May 14, 2014

Top 5 Questions to Ask a Divorce Attorney BEFORE you hire them

Starting the divorce process can be daunting and overwhelming.  The first step should be to retain an attorney to help you through the process.  Here are the top five questions you should ask a divorce attorney BEFORE you hire them.

1. What is your typical approach or strategy to cases similar to mine?  You will want to know if that attorney tends to work towards a settlement or tends to go straight to trial.  While the decision to settle is entirely yours, some attorneys believe settlements are better for their clients than others. 

2.  How often will I hear from you?  This answer will give you a great idea of the relationship that will exist between you and the attorney.  Some attorneys touch base more than others, if only to say that nothing has changed.  Are you the type of person that wants constant communication or do you only want communication when there is a change or update in your proceedings?  Will you get frustrated if your phone call is not returned immediately?  While this seems like a minute detail, communication is the basis for a great attorney-client relationship and you want to make sure both you and the attorney understand the expectations from the beginning.

3.  What is the time frame?  Many times, this answer cannot be given with any amount of certainty.  However, knowing a ball park time frame up front, with the understanding that things do come up with alter that time frame, will give you more patience during the process.  If you think the attorney is going to take too long to accomplish your goals, you may want to speak with some other attorneys (although the answer may not change).

4.  Who will be working on my case?  Many firms have multiple attorneys working on a case and likely a legal assistant or secretary as well.  You will want to know up front who all you will be working with and what their roles will be.  For example, if you have a question, who would be the best person for you to call: the attorney, his/her associate or the secretary?  Having this laid out up front will help you understand the process and make communication easier in the future. 

5.  How much will this cost?  In most divorce cases, an exact cost cannot be given but a range can be provided.  This is because most divorce attorneys perform work at an hourly rate.  At the beginning of a case, it is difficult to ascertain exactly how much time your case will take.  However, you can know what the hourly rates are of each person working on your case and an estimated number of hours.  Some attorneys charge more than others and it may be an important fact for you to consider when determining whether to hire an attorney.  This will also be a good time for you to discuss how much money needs to be provided up front and how you will be charged for additional funds in the future. 

While this list is not inclusive of every question you should ask a divorce attorney, asking these five questions will help you understand everyone's roles in your case and the expectations of you and the attorney.  If you are not satisfied with any of the answers, don't be afraid to express your concerns.  In fact, you should express your concerns.  Your concerns may be legitimate concerns that may prevent you from hiring the attorney or they may be a result of miscommunication and misinterpretation that can be resolved by discussing the issue further. 

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

Tuesday, May 13, 2014

Living together before marriage: think about a cohabitation agreement

When married couples split up, they have the law to help them separate their lives and belongings.  When an unmarried couple splits up, they have very little law and guidance on how to separate their lives and belongings.  This is particularly true in the case of unmarried couples who have been living together.  A cohabitation agreement may be right for you even if you expect to never split up.

In a cohabitation agreement, you and your partner can set out guidelines for what it will look like living together: who will be responsible for what tasks, who will pay which bills, who will provide what furniture.  This agreement is helpful even if you never split up.  It allows both parties to discuss and agree on household issues BEFORE they become issues for the relationship.

You can also agree, in a cohabitation agreement, what a potential split up will look like: who will get what belongings, who will be allowed to remain in the home, particularly if you own it, and how that will be divided, etc. This agreement will then become your guidelines during a split-up.  This way, both parties will know what to expect and they have already agreed on how things should proceed.

A cohabitation agreement is a type of contract and many parts of that agreement will be enforceable.  However, a cohabitation agreement is helpful to couples aside from the legal enforcement aspect, in that it provides a communication avenue and clarity of expectations from the beginning.

If you would like more information or a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Tuesday, May 6, 2014

Going through divorce: What about my health insurance?

There are millions of questions going through you head during a divorce and this one may or may not have come across your mind.  You're going through a divorce and you've been on your spouse's health care insurance; now what?

In many cases, the court can order your spouse to maintain you on his/her health insurance policy during the pendency of the divorce.  This means, during the time you are separated but not yet officially divorced, you may still be able to have health care coverage through your spouse.  However, it is extremely unlikely that you will be able to be maintained on his/her health care coverage after the divorce is finalized.  This means, during the pendency of the divorce, you should be looking into your options for health care; don't wait until the divorce is finalized to begin researching your options.  Keep in mind, however, the court may order that your spouse maintain your children on his/her health care insurance even beyond the finalization of the divorce.

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

Friday, May 2, 2014

Wills: Can I just use an online form?

You know you need a will (and if you don't, then stop and read this first) but it's a tough topic to think about, it's time consuming, and you aren't sure where to start.  For many people they turn to google and what pops up?  Online forms for will (think legal zoom type websites).  It's cheap, it's convenient, it's easy, so why not use it?

Ultimately, the decision on if you get a will done and how you reach that end goal is up to you.  However, you should think twice before you bypass a professional in the process.  Cheap, convenient and easy may sound great, but is it complete, thorough and in accordance with the laws of your state?  That's the more important question.

Working with an attorney to have a will drawn up is more than a simple document.  Through working with an attorney, rather than filling out a form, you receive state specific legal advice.  This means, we know the law.  We know how the law has changed and we know the consequences of the law.  We can look at your plan and point out holes or misconceptions and explain to you the reality of the results of your plan for your will. 

Working with an attorney will provide you with the opportunity to look at the bigger picture.  What are you missing with only having a will in place?  Are there other documents you need to protect yourself (such as titling assets a specific way)?  An attorney can show you the bigger picture and provide you with the resources you need to ensure you have a complete plan for the future. 

Additionally, in the future, should you decide you want to change your plans for your will, you can revisit your attorney, who has a past history and extensive knowledge of your situation, for advice on how to achieve your new goals.  To sum up, it may be more expensive, it may be slightly more work and inconvenience to seek the advice of an attorney on a will, but an online form is only going to get you a final product that may or may not reflect your wishes and goals; an attorney is going to provide you with additional resources, a big picture, and the ability to adjust your will more easily in the future.

If you need a will or need to update your will and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, April 28, 2014

Going through divorce: What about my pets?

Pets are like family for many of us and can be a very sensitive subject during the divorce.  While we may treat our pets like children, the courts will not.  The courts look at pets as property to be distributed in the same way as the home, a 401(k) or your boat.  This means, if you have to fight in court over this, you will need to think of your pet as property in order for you to have coherent arguments for why the court should award you the pet.

However, as with everything else in a divorce, you and your spouse can agree to whatever arrangements you would like.  You can agree that you each get one of the dogs.  You can agree that you move the dogs back and forth from week to week or month to month.  Or maybe you agree that one of you will keep the pets, but will allow the other person to have certain amounts of time with the pets.  You can agree on who will pay for vet bills, dog food and dog toys.  If you can agree, you can make it happen.  For many people, because of the sensitive nature of pets, it is better for them to come to an agreement that makes everyone at least somewhat happy, rather than allow the court to award the pet as property to one spouse or the other.

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

Friday, April 25, 2014

Thinking about Divorce: Should I leave?

This is a question many people face between the time that they've decided they want a divorce and the time they visit an attorney: Should I leave the home?  You may face this question for a multitude of reasons: your spouse refuses to leave, you need your space, you want a fresh start, etc.  You should be aware, however, that leaving the marital home may have consequences to you.

Leaving the marital home may decrease the chances that the court award you custody of the children.  In many cases (although, remember, child custody takes many factors into account), the parent remaining in the marital home may be awarded custody.  This is because courts like to see stability for the children and remaining in the home may be able to increase that stability.  There may be additional monetary consequences when it comes down to distributing assets, depending on the specifics of your case. 

If you are thinking about divorcing, you should contact an attorney as soon as possible to determine the best avenue for you to move forward.  If you would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Wednesday, April 23, 2014

Common Divorce Terms Defined

Divorce can be a complicated process, which is only made more complex by the multitude of legal terms we use during that process.  Thought it would be impossible to define all possible terms you could run into during a divorce, here's a list of some common terms and brief definitions: 

"Equitable Distribution": The scheme for dividing property during a divorce in Virginia.  It includes a list of factors that the judge takes into account and may not result in a 50/50 split of assets and liabilities.  Those factors include (from Virginia Code Ann. Sec. 20-107.3) :
1. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
2. The contributions, monetary and nonmonetary, of each party in the acquisition and care and maintenance of such marital property of the parties;
3. The duration of the marriage;
4. The ages and physical and mental condition of the parties;
5. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce under the provisions of subdivisions (1), (3) or (6) of § 20-91 or § 20-95;
6. How and when specific items of such marital property were acquired;
7. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;
8. The liquid or nonliquid character of all marital property;
9. The tax consequences to each party;
10. The use or expenditure of marital property by either of the parties for a nonmarital separate purpose or the dissipation of such funds, when such was done in anticipation of divorce or separation or after the last separation of the parties; and
11. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

"Custodial Parent" (from Virginia Code Ann. Sec. 63.2-1900): the natural of adoptive parent with whom the child resides.

"Guardian ad litem": An attorney appointed to represent the best interests of the children in the pending divorce or custody case.

"Mediation": A process by which the parties, using a neutral third party, can attempt to reach an agreement on the terms of their divorce.

"Child support": Money paid by one parent to the other for the benefit of the children.  This is determined by child support guidelines, which can be found here.

"Spousal Support": Money paid by one spouse to the other for the support and maintenance of that spouse during the pendency of and/or after the divorce is finalized.  (Read more on spousal support here).

"Arrearages":  This term refers to past due monies (typically in the form of child support or spousal support). 

"Complaint": The court document that initiates a divorce proceeding.

"Ore Tenus": Oral testimony heard in court for the purposes of supporting the allegations in the Complaint for divorce.

"Depositions": For purposes of a divorce, these are questions asked, under oath, outside of a courtroom, in support of allegations in the Complaint for divorce.

"Legal Custody": Legal custody refers to the major decision making responsibilities.  Legal custody can either be joint, meaning both parties have equal say in how to raise the child, or sole, meaning only one parent has a say in how the child is raised.

"Physical Custody": Physical custody refers to who the child actually resides with on a day-to-day basis.  This arrangement can be a wide variety or circumstances depending on the case.

"Visitation":  This term refers to the time the child spends with the parent with whom he/she does not reside.

"Pendente Lite": During a divorce, the court can award things temporarily, whether it be possession of the home, child support, spousal support, child custody, etc. These things are awarded during the pendency of the divorce and will be revisited at the conclusion of the divorce proceedings. 

"Marital Assets": Any and all property or liability owned by the married couple which needs to be divided during the divorce proceedings. 

"Final Decree of Divorce":  This court filing finalizes the divorce and is signed by the judge at the conclusion of all divorce hearings. 

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

Monday, April 21, 2014

What happens during a divorce?

Divorce.  What exactly is it?  We know that it is the formal separation of a married couple.  But what else? 

Divorce can be simply (or as simple as it can get) that: the formal separation of a married couple.  Divorce can also be many more things as well. 

Divorce can be the division of marital assets.  This can include the home, cars, personal property, 401(k)s, stocks, retirement income, the pets, etc.  Any property owned by both of the parties during the marriage (even if it was acquired before the marriage in some cases) can be distributed through the divorce. 

Divorce can be planning for the future: calculating child support and spousal support, separating future retirement income that has not yet been distributed, etc. 

Divorce can be determining custody and visitation of the children.  Who makes the decisions?  Who do the children live with?  When do the children see the other parent?  What are the expectations of each parent?  All of these questions can be answered through the divorce. 

Finally, divorce does not have to be limited to the legal realm.  For you, divorce may include, counseling or financial planning.  It may include searching for a new home or selling your old home.  Your divorce attorney should be able to, at the very least, point you in the right direction for accomplishing all of your goals in a divorce, not simply the legal separation and ending of the marriage. 

If you are going through a divorce or contemplating a divorce and would like a consultation, we can be reached at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, April 14, 2014

Child Custody: The Basics

Child custody cases (including divorces) are very complex.  Because of that, I can't explain all of the details of a child custody case in one article but I can provide you some of the basics.

Custody cases typically begin one of two ways: 1) as part of a divorce or 2) with a petition for custody to be determined.  If it is part of a divorce, it can either be heard in the Juvenile and Domestic Relations Court OR the Circuit Court.  If it is a petition for custody to be determined, the case will be heard in the Juvenile Domestic Relations Court.  The main difference is that if the case is heard in the Juvenile and Domestic Relations Court, your case can then be appealed to the Circuit Court for a new hearing and ruling.  See more on appeals here.

If you begin in the Juvenile and Domestic Relations Court, there will be a preliminary date set at which time both parties, you and your child's other parent, will appear in court to determine the issues and set the case for trial.  At this point, the judge may appoint a guardian ad litem ("GAL") as well (see more about the role of the GAL here).

If a guardian ad litem is appointed, the GAL will do an investigation over the coming months between your preliminary date and the trial date.  During this time, the GAL will interview both parents and meet with the child.  He/she may or may not interview extended family, doctors, teachers, etc. and may do announced or unannounced home visits to each parent's home.  The GAL will gain as much information as they deem necessary to determine what they will recommend to the judge as being in the best interests of the child.

At the trial date, the person who filed the petition for custody determination (or in Circuit Court the person who filed for the divorce) will first put on evidence.  For the evidence the judges typically consider when making their determination, see here.  Next, the other parent will put on evidence in support of his/her position.  Finally, the guardian ad litem may put on evidence and make a recommendation to the judge on how he/she should rule.  That recommendation is just that, a recommendation.  It is not the judge's ruling and the judge is under no obligation to follow the GAL's recommendation.  Finally, the judge will make the custody determination and issue an order spelling out the terms of the custody.

At that point, as noted above, you may be able to appeal your custody case to the next highest court.  While these are the basics to a custody case, the details can be very complex.  Typically, the sooner you retain an attorney in the process, the better off you will be. 

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

Wednesday, April 9, 2014

Attorney-Client Relationship: How does it work?

For most people, when they decide they need to meet with an attorney, there are a million thoughts going through their head: How do I pick the right attorney? What do I need to bring with me?  What should I tell the attorney?  How much is it going to cost?  How long is this process going to last?

One thought that does not typically go through the mind is: What exactly is the relationship between an attorney and me?  This, however, is an important question to ask yourself and to understand.  This is the groundwork for the rest of your questions, some of which I listed above.

So, how does the attorney-client relationship work?

In general, you, the client, are the boss.  You make the decisions (for the most part) and you can choose to fire your attorney at any time.  You decide whether you want to testify, whether you want to bring a lawsuit, whether you want to make or accept a settlement offer, etc.  There are, however, some decisions that are left up to the attorney.  In general, these decisions relate to trial strategy and the right to decline unethical action even if the client requests it.  Aside from those limited decisions, you get to control your case.  Remember, the issue you bring to an attorney is YOUR issue and YOU have to live with the consequences, not the attorney.

That being said, your attorney is there to advise you on how to make all of those decisions.  For example, you attorney may say, "I think their settlement offer is fair and the risks outweigh the reward of going to trial so I would advise you to accept that offer."  However, as I said above, if you don't want to accept that offer, you can say no.  It is your decision.  Similarly, your attorney is there to advise you about your claims.  Typically, a client walks into an attorney's office with an idea of what type of claims they want to bring against someone else, whether it be a discrimination claim or an adultery based divorce claim.  After providing the attorney with the facts, your attorney is there to evaluate your claims and advise you on how to move forward.  Again, it is YOUR decision.  If your attorney says you have a claim for adultery based divorce but you just want a no-fault divorce, you can make that decision.  The one caveat to this is that an attorney cannot ethically bring a claim if there is no basis in law or fact for that claim and therefore, if that is the case, the attorney has the decision making power to decline pursuing that claim.  Again, however, you are the boss and you are always free to fire your attorney, obtain the advise of another attorney, etc.

So why is this important to know?  This gives you a basis for how the entire proceedings will play out.  It gives you an idea of what your role is and what the attorney's role is in the process.  It is important to have this conversation with any attorney you are considering hiring.  It will give you a clear idea of how that attorney intends on handling your case, what is expected of you and the amount of time and effort that the case may take.

If you are looking to hire an attorney and would like to discuss how we would handle your case, please contact us at (804) 447-0146 of clbaudean@baudeanlaw.com.



Friday, April 4, 2014

Estate Planning: What is it?

Estate Planning.  It's listed on many attorney's website as a practice area; but do you actually know what it is?

Let's start off general.  Estate Planning is planning for your future and for your loved ones after your death.  Now to be a little more specific, estate Planning can involve:

1. Last Will and Testament.
This is a document that sets out how you want all property that you own at the time of your death to be distributed.  Do you want it to go to your brother?  Your children?  Nieces and nephews?  Best friend?  You explicitly tell the court how you want it to be distributed in this document.  You can also set out who you want to take care of your minor children, how you want to be buried and have your funeral carried out and other important items.  For more information on this, read this post.

2. Power of Attorney
This is a document that grants another person the authority to act on your behalf.  Specifically, this deals with financial matters. You can grant that person the authority to act on your behalf with banking, stocks, legal documents, etc.  You can grant this authority now or you can grant those powers upon your incapacitation.  This document can also be revoked, modified or renewed as long as you have the mental capacity to do so.  For more information on this, read this post.

3. Advanced Medical Directive
This document sets out what medical actions you want to be taken on your behalf should you become incapacitated, suffer trauma, or be unable to articulate those wishes for any other reason.  You can set out whether you want life-resuscitating action taken, whether you want a ventilator, and/or who you want to make those decisions on your behalf.  For more information on this, read this post.

4. Trusts
There are multiple types of trusts; some are revocable, others are not.  A trust is a probate-avoidance tool used in some estate plans.  It can be established now and endure through your death.  This is typically used when the parties do not want to have to go through the probate process, which can be expensive and time consuming.  Trusts hold the property of one person (trustor), for the benefit of another person (beneficiary) and is handled by another person (trustee).  The trustor and trustee can be the same person in some instances.  For example, if you want to hold property for the benefit of yourself and the upon your death, for the benefit of your children, then you are the trustor.  You and your children are the beneficiaries.  You may choose to be the trustee as well so that you are in control of your property so long as you are alive and then appoint a trustee to control the trust upon your death.  Trusts are a complex, but useful tool in some estate plans.

5. Other tools
A thorough estate plan should also look at how your property is titled and whether or not you have life insurance in place. among other things.  In many cases, you can title your property so that, upon your death, it automatically transfers to someone else without having to go through a trust or the probate process.  Life insurance can also provide some support to your family after your death as well as help pay for the funeral and burial.

The above tools are used in a full estate planning session.  However, most attorneys who practice estate planning are also willing and able to help you with simpler tasks, such as drafting a simple will.  While it is not a fun topic to discuss, it is important to think about these matters, discuss them with your close family and an attorney now so that life will be a little bit easier in the future.

If you would like more information or a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, March 31, 2014

Why you should avoid social media during a divorce

Everyone is on social media these days, whether it's Facebook, Twitter, Instagram or another website.  It's a quick and easy way to express ourselves, gain support from family, friends and acquaintances and show our support for those people as well.  During a divorce or custody case, however, you may want to keep those things limited to more private settings and here's why:

1.  You never know who can really see what you're posting.
Let's say you are recently separated and went out last weekend for a fun, crazy, girls weekend.  You had a great time and want to share those hilarious pictures with your circle of friends.  But do you want your spouse to see those pictures?  His attorney?  The Judge handling your divorce case?  Probably not.  The most innocent pictures and posts can be taken completely out of context and used against you during your case.  Even if you've blocked your spouse, maybe you forgot to block his best friend.  May his best friend saw the pictures, saved them and emailed them to your spouse.  Or maybe you're still Facebook friends with his sister because you still get along great and she saw those pictures and held onto them herself.  The point is, when you post something on Facebook, Twitter or Instagram, your audience may be larger than intended.

2.  You cannot control who posts things about you.
You can only limit posts about you.  Back to the previous scenario, let's say it's your best friend who wants to post those pictures.  If you are not on the social media sites, at the very least, your friend cannot tag you in those pictures and advertise that you are in them.  However, if you are going through a divorce or custody case, you should talk with your friends and family and make sure they understand that you do not want anything involving you to be put on social media.  Most people will understand where you are coming from.  If not, talk with your attorney about how to limit any unwanted exposure on social media. 

3.  The support you get from your social media group may actually hurt you.
You're in the middle of trying to settle a custody dispute with your soon to be ex-spouse and you're frustrated.  So you turn to Facebook to express that frustration.  Next thing you know you have a full list of friends providing advice on how to handle those negotiations: "tell him you're the mom so you should obviously have the children", "bring out the fact that he had a speeding ticket 10 years ago and you'll definitely win", etc.  While these are most likely friends and family members that intend on supporting you during this tough time, this support can actually hurt you.  Your custody case and any negotiations taking place are specific to your case.  What worked for your best friend's cousin, may not be applicable in your case.  Leave these discussions for you and your attorney.  If you need to vent to someone, talk with your attorney about an appropriate person to vent to and how to keep yourself focused on your case. 

The bottom line is that social media can hurt you in unexpected ways when you are going through a sensitive case. Always be careful what you put on the internet, you never know where it'll end up.  Turn to close friends and family for support in ways other than social media.  And always keep your attorney involved and up-to-date on anything that is posted on the internet.

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

Wednesday, March 26, 2014

Going through a divorce? Think twice before spending "your" money.

This is the messiest time of a relationship: you are separated from your spouse but not officially divorced.  You have unofficially split up some assets.  Maybe you each opened a separate checking account.  Maybe you took some money out of the joint checking account and moved it to your personal checking account.  Maybe you cashed in some retirement funds.  Think twice before you spend a large chunk of money during separation; here's why:

The technical term is "dissipation of marital assets" and what it means is that you have spent marital money (i.e. money that belonged to you and your spouse jointly) on personal items (i.e. a weekend girls' trip to the beach, a new wardrobe for yourself, etc.).  The result of this is that you may owe some money back to your spouse at the end of the divorce for what you spent.  Here's an example:

You and your spouse has $25,000 in your joint checking account at the time of separation.  During the separation $10,000 is used to maintain marital assets and the family.  Also during the separation, you take $10,000 and spend it on a vacation for you and your friends.  Due to those expenses, at the time of your final divorce hearing there is $5,000 left in your joint checking account.  $10,000 of that was spent permissibly on maintaining marital assets and the family.  Because the court will consider your $10,000 spent on a vacation as dissipation of marital assets, that amount will not be deducted from the $25,000 you started with at the time of separation.  That leaves you with marital property of $15,000.  To recap: there is actually $5,000 in your joint checking account but there is $15,000 worth of marital property from that joint checking account.  Let's say the court determines marital property is split 50/50.  You get $7,5000 and your spouse gets $7,500.  Because there is only $5,000 in that joint checking account and you already spent $10,000 of that joint checking account money on yourself, you will be required to repay $2,500 to your spouse. 

Now, this does not mean you cannot use money to pay the mortgage and the bills and for groceries.  Marital funds can permissibly be spent to maintain the family and marital assets (i.e. the marital home, cars, etc.). 

As you can see, even with a simple example and even numbers, this area of law can get quite complicated.  If you are separated or contemplating separation, take a quick read on why you should consult with a lawyer first here and what you can expect from an initial consultation with an attorney here.  If you would like more information or a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.