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.

How to Pick the Right Attorney for You

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How you could be waiving attorney client privilege without knowing it

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

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

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

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

Not happy with the result? Know your right to appeal

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

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

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

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