In some cases, you can change your current custody and visitation arrangement

Whether your current custody and visitation arrangement is by court order or by agreement or both, if you are unhappy with the current arrangement, you may be able to change it through a Motion to Amend.

There are two distinct parts of a Motion to Amend.  First, you have to show the court, through evidence, that there has been a change in circumstances since the last court order or agreement.  This can be a variety of things: deteriorated health of one party, moving a significant distance, the child's age and schooling requirements, etc.  This is very fact based and the more change you can show a judge, the more likely the judge will find that there has been a material change in circumstances.

Assuming the court finds a material change in circumstances, the court then must determine a new custody/visitation arrangement that is in the best interests of the child(ren).  For a refresher on what "best interests of the child" means, take a look at our previous post on custody here. 

Because these cases are extremely fact based, it would be wise to retain an attorney who is familiar with the rules of evidence to represent you and present the strongest case possible.  If you would like more information or a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com

Why you may want to consider a divorce or custody settlement

Divorce and custody cases can be very emotionally, mentally and physically draining period of time.  Because of all of the emotions surrounding the division of your marriage or the amount of time you will have with your children, your first instinct is probably to fight hard and "win".

It may be beneficial to take a step back and lose the words "win", "battle", "fight" and think more in terms of solutions.  How can you get through this time and come out with a more peaceful solution for everyone involved.  And by everyone, I mean, specifically, your children.  While you are caught up in beating your ex-spouse, you may be losing sight of what's really important: the children you are "fighting" over. 

Think about how you and your ex-spouse could work together to come up with an amicable, peaceful resolution.  It will likely benefit your children to see that their parents can still work together.  Your children may not feel the need to "take sides" if they don't see the constant fighting over them.  You and your ex-spouse are probably less likely to continue "fighting" over the children in the years to come if you came to an agreement together.  You will lose a fair amount of the stress that comes along with allowing a third party stranger (i.e. a judge) decide how much time the children should spend with you and your ex-spouse.

Remember, you can be creative.  This is YOUR agreement.  You and your ex-spouse know your situation better than anyone.  You know how the logistics of any arrangement are going to play out.  You know your children better than anyone and you know what types of arrangements are going to work for them.

Everyone's case is different and because of that, it would be wise to consult with an attorney who can listen to all of the facts of your case and your circumstances and provide advice on the best way to proceed in you custody or divorce case.  Settlements are not always the best for each individual case and you should certainly not settle a case if you do not believe it is your best interest or your children's best interests.

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

Divorce: Not just about the law

When you think of divorce, the next thought in your head is likely "attorney" or "court" or "law".  As a divorce attorney, it is important to ensure our clients look at the big picture and not just the legal aspect of the divorce.  There is a large network of individuals and groups who can help you through the process of a divorce and to help you be most successful, I have provided a general idea of those resources below:

Counselor/Therapist.  There are many counselors and therapists who specialize in divorce issues (for you and for your children if you think it would be beneficial).  Talk with your attorney about who they know and trust that might be able to help you and your family during this emotional time.

Financial Advisors.  Starting out on your own after a divorce can provide some new and difficult hurdles financially.  Talk with your attorney to help you find a trusted financial advisor who can help you plan for your future.

Support Groups.  A support group may be helpful for you to work through the changes occurring in your life.  An attorney should be able to point you in the right direction to finding a support group that will benefit you.

Coparenting Classes.  Sometimes this is court ordered, other times it may just be a good idea.  You and your ex-spouse now need to learn how to parent your children while not being together.  Coparenting classes will help you learn those skills and how to properly interact with each other and your children in this new environment.  Your attorney can help you find a coparenting class to fit your needs.

These are only a few resources an attorney can help you find and use during and after your divorce.  You should never hesitate to ask your attorney for information on other resources.  If you would like a consultation on your divorce, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Where to start as Executor/Administrator of an Estate

Someone close to you recently passed away and you think you were named as the executor of the estate.  Now what?

The first thing you should do, is locate the will.  If you don't already know where the will is, look in important places (an important papers file, a safety deposit box if you can access it, a safe in the home, etc.) and talk with other family members and close friends to find out if they know where the will is located.

Once you have the will, there are two things you need to start doing as soon as possible:

1. Track down ALL of the property owned by the deceased person.
2. Admit the will to probate.

As to number 1, hopefully you had previously read my blog post on the importance of discussing this issues ahead of time.  If no, to track down all of the property, you may need to hire some professionals to assist.  Again, talk with family members and friends to try to determine what all was owned by the deceased person. 

For number 2, you typically need to take the ORIGINAL will to the courthouse in the city or county in which the deceased person resided.  You will want to make sure you are in the Circuit Court building.  Depending on the set up of the clerk's office in the courthouse, there is most likely a probate clerk and that is the person with whom you want to speak.  The probate clerk can help you through the process.  During that process, you will sign an oath, likely pay a bond, and be given instructions on your duties moving forward.

Admitting the will to probate is just the beginning on the probate process (which is described briefly here).  I strongly suggest you speak with an attorney as soon as possible to ensure you are adequately performing your duties as the executor throughout the entire process.

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

The Death Penalty in Virginia

In Virginia, the death penalty is an available sentence for only one crime: First Degree Murder.  First degree murder means there was premeditation in killing the victim.  However, for a court or jury to impose a death penalty sentence, there must be at least one aggravating factor.

The following are considered aggravating factors in Virginia:
"1. The willful, deliberate, and premeditated killing of any person in the commission of abduction, as defined in § 18.2-48, when such abduction was committed with the intent to extort money or a pecuniary benefit or with the intent to defile the victim of such abduction;
2. The willful, deliberate, and premeditated killing of any person by another for hire;
3. The willful, deliberate, and premeditated killing of any person by a prisoner confined in a state or local correctional facility as defined in § 53.1-1, or while in the custody of an employee thereof;
4. The willful, deliberate, and premeditated killing of any person in the commission of robbery or attempted robbery;
5. The willful, deliberate, and premeditated killing of any person in the commission of, or subsequent to, rape or attempted rape, forcible sodomy or attempted forcible sodomy or object sexual penetration;
6. The willful, deliberate, and premeditated killing of a law-enforcement officer as defined in § 9.1-101, a fire marshal appointed pursuant to § 27-30 or a deputy or an assistant fire marshal appointed pursuant to § 27-36, when such fire marshal or deputy or assistant fire marshal has police powers as set forth in §§ 27-34.2 and 27-34.2:1, an auxiliary police officer appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733, an auxiliary deputy sheriff appointed pursuant to § 15.2-1603, or any law-enforcement officer of another state or the United States having the power to arrest for a felony under the laws of such state or the United States, when such killing is for the purpose of interfering with the performance of his official duties;
7. The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction;
8. The willful, deliberate, and premeditated killing of more than one person within a three-year period;
9. The willful, deliberate, and premeditated killing of any person in the commission of or attempted commission of a violation of § 18.2-248, involving a Schedule I or II controlled substance, when such killing is for the purpose of furthering the commission or attempted commission of such violation;
10. The willful, deliberate, and premeditated killing of any person by another pursuant to the direction or order of one who is engaged in a continuing criminal enterprise as defined in subsection I of § 18.2-248;
11. The willful, deliberate, and premeditated killing of a pregnant woman by one who knows that the woman is pregnant and has the intent to cause the involuntary termination of the woman's pregnancy without a live birth;
12. The willful, deliberate, and premeditated killing of a person under the age of fourteen by a person age twenty-one or older;
13. The willful, deliberate, and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism as defined in § 18.2-46.4;
14. The willful, deliberate, and premeditated killing of a justice of the Supreme Court, a judge of the Court of Appeals, a judge of a circuit court or district court, a retired judge sitting by designation or under temporary recall, or a substitute judge appointed under § 16.1-69.9:1 when the killing is for the purpose of interfering with his official duties as a judge; and
15. The willful, deliberate, and premeditated killing of any witness in a criminal case after a subpoena has been issued for such witness by the court, the clerk, or an attorney, when the killing is for the purpose of interfering with the person's duties in such case."
Virginia Code Section 18.2-31

These are the only instances in which a court may impose a death penalty sentence.  In common with all of these factors is the "willful, deliberate and premeditated killing" or another, meaning all of these factors result in a conviction of first degree murder.

Virginia certainly does not have the most lenient death penalty law but they are also not the harshest.  In fact, many states have abolished the death penalty all together.  On the other hand, in some states, there are additional crimes for which someone can be sentenced to death. 

If you have questions regarding the death penalty, you should seek the advice of an attorney.

Custody: Do you understand the role of the guardian ad litem (GAL)?

Custody cases can be complex, emotional and just plain difficult for a lot of people.  Aside from the emotions and practical challenges of dealing with a court case, you have to figure out who is who and what their role is.

Guardians ad litem are appointed in a lot of custody cases, especially those where the mom and dad are unrepresented and do not have an attorney.  If you have an attorney, your attorney should explain the role of the guardian ad litem.  If you do not have an attorney, the guardian ad litem should explain his/her role.  However, things that should be done are not always done and sometimes there is just a disconnect between one person's explanation and the other person's understanding.

Here's a brief overview of the role of the guardian ad litem, or GAL, in custody cases. 

The GAL represents the child in the case.  This is a very similar relationship that you, as an adult, would have with an attorney.  The GAL's role, however, is slightly different, in that sense.  When you are represented by an attorney, with some limitations, that attorney MUST do what you want him to do.  He MUST advocate for what you want.  A GAL, on the other hand, does an independent analysis of what is in the best interests of the child.  The GAL MUST advocate for the best interests of the child, even if the child says he wants something different.  Similarly, when you are represented by an attorney, again with few limitations, any communication between you and that attorney MUST remain confidential.  A GAL, however, may disclose those confidential communications if he finds it is in the best interests of the child.  For example, if the child says, "don't tell anyone but my mom/dad/brother hurts me", it is likely in the best interests of the child that the GAL alert appropriate parties and obtain help for the child.

Another aspect of the GAL's role is to provide a recommendation to the judge on how he/she should rule.  This recommendation is formed after a thorough independent investigation and review of the case.  A judge can only consider the evidence before the court (which does not include things such as hearsay).  The GAL, however, may consider all information obtained in his/her investigation.  The Court is not required to follow the GAL's recommendation, but many times the Court puts significant weight on the GAL's recommendation.

Finally, it is the role of the GAL to explain the court proceedings to the child.  The GAL should talk with the child before court and explain the roles of each party, what the court proceedings will be like, etc.  This explanation will vary greatly depending on the age, maturity and education level of the child.  An important duty involved in this role is to talk with the child after the conclusion of the case and explain to the child what the outcome of the case is: is he now going to be living with mom, will he see dad every weekend instead of every other weekend, etc.

This is a brief overview of the role of the GAL.  The specifics of how a GAL carries out his responsibilities and duties depends, in large part, on the specific circumstances of the case.  If you are involved in a custody case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Is it possible to legally separate while living in the same house as your spouse?

In Virginia, as with all states, the laws surrounding divorce are constantly evolving and adjusting.  As I have discussed in previous posts, in order to finalize a divorce, the parties must live separate and apart for a period of six months, or 1 year, depending on the circumstances.  This can be very difficult for families who are on limited income and/or have a lot of expenses. 

Slowly, the courts have started to recognize the idea of separation while living in the same house.  Whether the court finds that you have lived separate and apart, despite living in the same house, is extremely fact based, meaning there is no bright line and the courts look at each case differently. Because of this, it is very important that you consult with a lawyer for the best chances of the courts finding that you lived separate and apart for the required period of time.

Some things the Court will look at and you should be doing to ensure your legal separation are:

• Absolute, complete sexual abstinence (one incidence can restart the clock)
• Separate bedrooms
• Separate bank accounts
• Separate meals, grocery shopping, laundry, etc.  
• No outings as a couple (including church, meals, etc.)
• Inform family and friends of the separation 
• Have a close family member or friend come to the home periodically to observe you and your spouse living separate and apart
• Act as roommates, not as spouses

As I said, there is no bright line rule, so those are just some of the types of facts courts will consider when deciding whether legal separation has occurred.  If you would like a consultation or help navigating the separation and divorce process, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Getting married? Do you understand what a pre-nup can do for you?

Pre-nuptial agreements (more commonly "Pre-nups") are becoming more and more popular among all age groups.  This is probably because people are learning more and more about what a pre-nup really is and how it can work for them.

Everyone hopes when they marry someone that it will last forever.  Unfortunately, we hear all too often about the high rate of divorce in America.  A pre-nup can help you and your soon-to-be spouse work out the logistics of a marriage and possible divorce ahead of time.

In a pre-nup, you can set out an agreement on life insurance policies to be held for the benefit of each other, details about how wills will be drawn up, and how property (even property you don't yet have) should be split up if you do end up in a divorce.  You can, essentially, set out whatever details you want in a pre-nup as long as it does not violate public policy (for example, you CANNOT pre-determine child support in a pre-nup). 

Pre-nups should be discussed, formed and signed well ahead of the wedding date.  It is important for most people that both parties full understand the goal of the pre-nup and agree that a pre-nup is a helpful tool for them in planning their future.

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