What Are Removal Proceedings?

If you have found this article, it is likely that you are facing one of the most difficult times in a parent's life. Many states have proceedings that are known as "removal proceedings". This is a complicated, multi-step process that begins whenever the Government has concerns about the health and safety of your children. The purpose of this article is to dispel some of the unknown factors that go into these proceedings.

In the state of Virginia, these proceedings are initiated by the Department of Social Services. They can start a number of different ways, but typically are in the context of an Emergency Removal. Facts have come to the attention of DSS which leads them to believe that the children are no longer safe in your home. 

One of the first steps can be the initial removal of the children upon an "affidavit" filed with the Court. this document outlines to the Court why the Department thinks the children should be removed. Within a short period of time after this removal, you are entitled to an initial hearing to determine if the removal was appropriate. At that hearing, you can choose to participate with DSS or fight the removal. 

A few things can happen at that first hearing. The Court can decide to take up both the reasons for the removal and whether or not the children have been "abused or neglected". Alternatively, the Court may split these two issues up into two different hearings.

If it is split up, you will have another hearing called an "adjudicatory hearing" within 30 days unless all agree to push it out further. At this hearing, the Court will take evidence about whether the children were abused or neglected. After this hearing, you will get a "dispositional hearing". At that hearing, the Court will decide whether the children will be returned or will continue with their placement elsewhere.

If you are facing a removal proceeding, you need immediate counsel. Courts will typically appoint counsel for those who cannot afford counsel. However, if you can afford counsel, it is imperative that you begin looking for an attorney immediately upon receiving notice of the removal.

American Society of Legal Advocates

I am pleased to announced that I have been selected as one of the Top 40 Lawyers Under 40 for Family Law from the American Society of Legal Advocates for the year of 2017. This organization is an invitation-only legal organization which describes its goals as promoting only the most outstanding legal talent throughout the country. I am honored by the nomination and shall continue to serve my clients in the same fashion.

Five Tips for Preparing to Meet With Your Wills Attorney

While getting the documents you need to plan for your family's future is important, it is also important to prepare the documents your attorney will need to get those documents done. The more preparation and planning you do now, the less expensive your estate planning will be. There are five tips to keep in mind when meeting with your attorney.

STEP ONE: PREPARE A LIST OF YOUR ASSETS

It is important that your attorney have a clear picture of all the things that you own and all the people that you owe debts to. The balance of your debt and your assets is important in drafting a good estate plan. Some information that will need to be on this list is how much you obtained the item for, how much the item is currently worth, and where the item is currently located. This also applies to debts. Your attorney will need to know who you owe money to, how much you owe that person, and when you incurred that debt. Getting names and contact information is important.

STEP TWO: PREPARE A LIST OF HEIRS

It is important that your attorney know who all your relatives are. Many relatives may decide to intervene when it comes to carrying out your Will, and your attorney will need to plan for those people. Include in your list addresses and phone numbers. This will allow the attorney to quickly get in contact with these people.

STEP THREE: DECIDE WHO WILL ADMINISTER YOUR ESTATE

You also need to start thinking about who will be distributing your assets. This needs to be a person who is in a strong financial position and will be able to post a bond. It is best if this person is a resident of your state. Your lawyer will also need their contact information.

STEP FOUR: MAKE A LIST OF CURRENT MEDICAL CONDITIONS

Your attorney needs to know your current health condition as well. This comes into play when determining whether a trust is a good idea. Planning for future medical needs is part of the process, and knowing what conditions you currently have help to inform your lawyer of the best steps to take.

STEP FIVE: MAKE A LIST OF QUESTIONS

Come prepared to your first meeting. Make a list of questions in advance that you can ask your lawyer. Being informed is an important part of the process, and lawyers are only able to answer those questions people ask them. 

What is an "Advanced Medical Directive"?

There are a number of documents that a Family should consider having when they are planning for the future. Among those documents is the Advanced Medical Directive. This is a document that outlines the wishes of the individual in terms of the kinds of services they wish to receive should they become incapacitated. It grants a family member the ability to make certain types of health decisions for them in the event of medical problems.

There are a number of reasons why you may want an AMD. An AMD is crucial in helping to manage the costs of medical services and informing family members of your wishes. It is important to have someone that can make hard decisions when you may be facing medical danger.

Another illustration of when an AMD may come into play is in considering long term care for a disability. These documents allow individuals to interact with hospital staff on these issues. Failure to plan for such issues may result in excessive medical bills, attorneys fees for court battles, and difficult dealings with hospital staff.

If you or a family member are considering future issues that may arise, this is one of the first things you should ask your attorney about.

What Court am I In? Basic Information on Virginia Courts.

 The Virginia Court System is a scary place. Especially when you are dealing with some of the busier areas like Fairfax, Arlington, or Alexandria. It is often hard to tell where you are supposed to be going or who you should be speaking with at the court house for your particular case. Fairfax Court is almost like the New York subway at some hours of the day in terms of the number of people moving around. That is why you need to know the basics of which court handles what, and where you should be focusing when you are handling divorce related issues.

     To begin, it is important to understand who the people are in the court house. Some of the titles you will hear include Judge, Clerk, Sheriff, Bailiff, Guardian ad Litem, and The Commonwealth. The Judge is the person that will be sitting at the bench during your case. The judge, in a divorce case, is primarily there to maintain order and make sure attorneys are following the rules. The clerk is probably your best friend in a divorce case. This is the person you will be speaking to if you need to file anything. Clerk's can offer fantastic guidance on where you should be going and who you should be talking to. Each type of court has their own clerk, and this should be your first stop at the court house.

     Divorce issues are primarily dealt with in two of the three courts in Virginia; Circuit Court and the Juvenile and Domestic Relations Court. Each court has their own judges and clerks. The Circuit Court handles the actual divorce itself; whether that is uncontested or contested. You generally file your divorce with the Circuit Court Clerk. Make sure you either have an attorney for this process, or are extremely familiar with the process beforehand.

     The Juvenile and Domestic Relations Court handles all issues related to minor children. Some issues that will appear before the JDR court include custody, visitation, support, and abuse and neglect. This is the court you will want to go to if you wish to change custody or visitation arrangements. The JDR court is what is called a court not of record. Everything the JDR court does is sealed. This is primarily to protect the interests of the child.

    Good luck navigating your local court, and always keep in mind your purpose for being there, and which of these two courts' clerks you should be speaking with.

Divorce and Bankruptcy

Bankruptcy is a complex area of Federal Law that is all about giving people a fresh start. For instance, if your monthly payments on your debt exceed the amount of money you are bringing home, it may or may not be a good idea to declare Bankruptcy. To understand how marriage and Bankruptcy interact, you must first understand the basics of Bankruptcy.

     There are a number of different types of Bankruptcy filings available to debtors; Chapter 7, Chapter 11, and Chapter 13. These forms of Bankruptcy can be further split into two types; reorganization and immediate forgiveness. Chapter 11 and Chapter 13 are forms of the reorganization type. In this type of Bankruptcy, debtors must continue to make payments to a "Trustee" who is appointed to mange their finances. These plans may take between three and five years to finish. Chapter 7 is a type of Bankruptcy that allows you to discharge your responsibility for debt much faster.

     Chapter 7 sounds like the easiest of the three options, but there are some very strict guidelines for determining whether you qualify. The Bankruptcy courts utilize a "means test", which examines information such as your income level, the median income for where you live, and your debts. If you are below a certain threshold, you are allowed to file for Chapter 7.

     Whichever type of Bankruptcy you qualify for, your debts may be "discharged" at the end of the process. This does not mean that the debt completely goes away. It merely means that the creditor cannot attach to your personal bank accounts, wages, or personal property anymore. If the creditor is a "secured creditor", such as a mortgage holder, they may still have the option of foreclosing on the secured property, such as your house.

    Given all these types of Bankruptcy plans, it is important to work with an attorney who is specially licensed to handle cases before your local Bankruptcy courts. If your debts are getting to be too much, seek out a local Bankruptcy attorney to discuss your options. The attorney will need to examine what kinds of debts you have to determine if Bankruptcy is right for you.

Divorce and Debt Collectors

  This is the first in a series of blogs that will explain the interplay between Debt and Marriage. Some of the areas that will be addressed in this series include the effects of Bankruptcy, whether or not a Creditor can reach assets of the marriage, how debts are divided upon divorce, and other issues related to Debt. This post will address some of the basic information related to when a creditor may be able to reach the assets of a Spouse.

     First, you have to understand the difference between marital debt and separate debt. A debt that was incurred during the marriage is far more likely to be considered marital debt than debt incurred prior to the marriage. For debts that are incurred prior to the marriage, there must be some act after marriage that would turn the debts into marital debt. For instance; if you agree to co-sign or re-execute a financing agreement or mortgage with your new spouse. That could turn previously separate debt into marital debt.

     Even if a debt is considered to be marital, a creditor may or may not be able to pursue collections against you individually for the debts of your spouse. Generally speaking, if a debt is considered marital, the collector may attempt to recover against property that is considered marital, but not necessarily against property that is considered separate. Like debt, the nature of property depends on how and when it was acquired.

     For a creditor to collect against property that you had prior to marriage and is not considered marital, they must be able to go forward on some specific theories of recovery. One of those theories is known as the "doctrine of necessaries". If you and your Spouse were living together at the time the debt was incurred, and it was for a necessary reason like medical expenses, you may be on the hook for that debt. The creditor may well be able to reach property you had prior to marriage. For instance, if you had land gifted to you by your parents prior to marriage and the creditor can prove the doctrine of necessaries, they may be able to collect against your property.

     This is simply a brief overview of when a creditor may reach the assets of a spouse for the collection of a debt. The facts of your case may skew the results of this analysis. For more information, it is recommended you seek out a Consumer Protection attorney in your local area that can advise you on how to address debts that arise during marriage.

What Does a Court Case Look Like?

Pursuing your interest in Court can be extremely nerve racking. One of the reasons people have anxiety about Court is that they do not know how things work. Many arrive at court without knowing what the steps in the process are, or what is expected of them. This article will explain the basic steps of the average court case, and what you can expect from each stage. Please note, this is not a walkthrough, and you should not rely solely on this in pursuing your claim in Court. If you have legal questions, hire a local attorney.

     The first step in a Court Case is the filing of a claim. As previously discussed, there are a number of factors which determine where you should file. In Circuit Court, a case is typically initiated by filng a "Complaint". This Complaint details what your claim is all about. It lays out the facts which make up your claim and inform the Court why you are there. There are a number of requirements for having a validly drafted Complaint. In General District Court, a case is initiated by filing a Warrant. The specific type of Warrant you are looking for depends on the type of case. Landlord & Tenant disputes typically involve Unlawful Detainers or Tenant's Assertions. Getting your property back from unlawful possession involves Detine. Warrant in Debt is used to pursue contract claims. There are a number of options available. In Juvenile and Domestic Relations Court, a case is begun by Petition or Motion. There is additional paperwork which must accompany the Complaint.

     After a case is filed, there will need to be "service of process". This means that the opposing party must be informed of the proceedings. Typically speaking, most rely on Sheriffs to have papers served.

     The next step is getting an initial hearing before a Judge. In Juvenile and Domestic Relations and General District Court, you are given an initial return date when you file. At this date, further proceedings may be scheduled, or judgment granted depending on the nature of your claim. This is typically not the trial date. In Circuit Court, a case will sit on the docket until you ask the Judge to take specific action. There are a number of things a person can ask a Circuit Court to do; such as scheduling when things should be accomplished by, setting a hearing for judgment, etc.

     After the initial hearing, a trial date will be set. Prior to this trial date, there will be a process known as "discovery". Discovery is the process by which attorneys typically gain access to information necessary for trial. Attorneys are able to get people to turn over documentation, require people to come testify at Court, or to take depositions, which are basically interviews. The type of discovery best for your case depends on the type of evidence you need to proceed and win your case. There is no one size fits all method of discovery.

     Another process that takes place prior to trials is known as "motions practice". This is something Attorneys do to challenge the sufficiency of the process you have utilized. If there is a deficiency, it may cause your case to be dismissed, which could seriously harm your claim.

     At trial, both sides will be able to put on evidence. The Plaintiff typically goes first. The Plaintiff, or the person who filed suit, may call witnesses and ask them questions. After you are done asking them questions, the other side is allowed to do so. You keep calling questions and putting on evidence until you have run out. At this point, it is the Defendant's turn to put on testimony and evidence. Like the Defendant, you may cross examine and ask questions as well. Some questions are not allowed, and attorneys can object to those questions.

     At the end of the day, however, you should hire an attorney. Primarily because failure to follow the rules at any one of those stages may mean you lose your case. Consult a local attorney whenever you have a claim against someone.

How will my criminal case impact my custody case?

Criminal proceedings and Domestic Relations often go hand in hand. Many people incur criminal charges as part of the divorce process or during custody and visitation disputes. Jilted spouses are quick to run to the Magistrate, often filing bogus or mundane criminal charges out of spite. When you are facing criminal charges, this may impact the underlying custody or visitation cases.

 

     Some of the most common criminal charges that pop up in custody proceedings include; Assault and Battery, Drunk and Disorderly, Misuse of Telephonic Communications, and Larceny. When people are splitting up, things are often said or done which could potentially open them up to criminal liability. Most of these charges are misdemeanors. Many misdemeanors carry the possibility of jail time. Whether or not your charge carries potential jail time is determined by the severity of the offense. There are four levels of misdemeanors, with Class 1 being the most severe. 

 

     These criminal proceedings can be taken into consideration when dealing with custody and divorce proceedings. The reason for a breakup may impact distribution of property or division of debts. Additionally, some crimes may make one parent seem unfit to care for their child. It is important that you handle these matters immediately, prior to the Domestic Relations matters making it before the Court.

 

     In order to handle these proceedings, seek out a local Criminal Defense attorney to help you work out a deal with the Commonwealth Attorney. Some cases may be dismissed, others deferred, and even others may be reduced to a different charge. It is ultimately up to the Commonwealth Attorney to agree to these outcomes.

 

     Even if you handle these cases in advance, the other party can still talk about the things that were done in front of the Judge handling the Domestic Relations matters. That is why it is also important to have a Family Law attorney to help mitigate that damage.

 

     To summarize; if you are facing criminal proceedings that arose out of a Domestic Relations disputes, immediately seek out an attorney who can help you handle both areas of law. It is ideal that the criminal matters are taken care of in advance as to mitigate any potential impact they may have.

How do I pay for court?

 One of the most common questions that I see floating around related to Family Law is how to afford an attorney. A great number of people out there who may be reading this article are having a hard time being able to afford an attorney. This is incredibly harmful, especially since attorneys are one of the most important parts of a strong Child Custody and Support case. Without an attorney to help guide someone through the process, they are likely to get hung up on many of the tiny, complex legal rules that plague people and get cases dismissed. So how does one afford an attorney when they don't have much money?

     A common way for low income families to afford an attorney is by working with Legal Aid. There is a problem with legal aid; they typically will not handle Child Custody and Support cases unless there is a serious harm to the child involved such as abuse or neglect. Without Legal Aid to help, families are forced to look for money elsewhere.

     With that in mind, there are still ways to obtain financing for low income families. The first is litigation financing. There is a growing business out there that provides loans to people looking for help with their case. People need to be cautious of this time of financing, because interest rates can be extremely high. It is likely that any money received from a spousal support case would be entirely consumed by paying down the interest on the loan. This is a last resort option for many people.

     Since loans can be predatory, the next option is to borrow money from close friends or family. This is actually the most common way for people to find money to afford an attorney. They will borrow money from their parents or new significant others to pay for the costs of a divorce and child custody case. Family is the primary means a low income individual should pursue when looking for financing.

     Finally, and a less often pursued route, is to work out a payment plan with the attorney you have decided to represent you. Attorneys are business people, and are often willing to work out payment plans with their clients. Whether an attorney is willing to do this is entirely up to them. In order to take advantage of these payment plans, clients need to be proactive and tell a potential attorney that is the kind of service they are looking for.

     The last thing to consider is how to mitigate costs once you do have an attorney. Bickering is a pocket book's worst enemy. If people are able to negotiate the problems between them, then they will not have to expend so much money on attorneys fees. Although child custody and divorce proceedings can be highly emotional, it is a smart idea to try and put that aside in order to negotiate and reach an agreement.