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.

What is Alimony?

 Going through a divorce is a difficult financial time for most people. There are the costs of lawyers, the costs of going to court instead of work, and the costs of losing the economic help from a spouse. Due to the stress divorce places on married couples, Virginia has an extensive area of law dedicated to helping relieve this economic stress. Alimony is Virginia's way of giving spousal support to the party in most need. Virginia does not view alimony as a game between spouses to see who can cheat the other out of money better, but a way of reconciling the economics realities divorces cause.

     Alimony law in Virginia is open-ended, and allows for a well-trained lawyer to make a compelling case for either side. Attorneys and litigants must consider a few things when presenting their alimony case to a judge. Under Virginia law, the court must take into consideration a list of statutory factors:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

This factor primarily involves things such as marital debt. Increased economic reliance on a spouse due to marital debts will cause a judge to be more likely to grant alimony.

2. The standard of living established during the marriage;

This factor includes things such as where the couple lived while married, the type of accommodations they were accustomed to, and other life style factors. A couple that lived in a fancy high-rise in Georgetown is more likely to owe larger spousal support than other couples.

3. The duration of the marriage;

Simply put, the shorter the marriage, the less alimony.

4. The age and physical and mental condition of the parties and any special circumstances of the family;

This factor takes into consideration earning capacity of the parties based on their mental health needs and the mental health needs of other family members.

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

This factor takes into consideration custody arrangements between the couple in relation to a special needs child. A parent that sacrifices to take care of a special needs child is likely to get more alimony.

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

This factor takes into consideration who the primary bread winner of the family was. The more a person contributes to the family, the more likely that person will be required to help maintain the standard of living.

7. The property interests of the parties, both real and personal, tangible and intangible;

This factor is taken into consideration when there is substantial amounts of property to divide. If significant amounts of property are given over, then less alimony may be ordered.

8. The provisions made with regard to the marital property;

Similar factors to number 7.

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

This factor takes into consideration the earning capacity of the individuals based on their levels of education. The more educated a person is, the better able they are to provide for the other spouse.

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

Under this factor, the courts will impute a degree of ability to earn a living based on the ability of the spouse to obtain their own job.

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;

When a member of the family has given up a lot of opportunities in order to help the family, then they are more likely to receive support.

12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and

13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

     As you can see, there are a variety of factors that go into a judicial determination of alimony. Each of these factors must be supported by sufficient evidence. This is one of the reasons that alimony is a rather complex area of law that normally requires an attorney to get a favorable result. If you find yourself in need of spousal support or alimony, it is always wise to hire an attorney to help you.

Child Support

upport, custody, visitation, property distribution, and fault are the major areas of the law attorneys deal with in Divorce Court. Issues related to spousal and child support are some of the most complicated and contentious portions of the law. An elaborate set of laws define how the court determines whether and for how much one spousal must pay for support. The first area of support that I would like to talk about is Child Support.

     Virginia has adopted guidelines which define how much a parent will have to pay when it comes to child support. Clients will often ask whether or not they can waive child support. The answer is no! Child support is considered to be the right of the child, and the state of Virginia does not allow parents to contract out of child support. Some the factors that the court considers in setting child support include; "Who is the primary caregiver of the children?", "How much is each parents' gross revenue?", and "How many children are there of the marriage?"

     The Virginia Juvenile and Domestic Relations Court or Circuit Court must normally apply these questions to a series of guidelines. There are different figures that come out based on whether or not it is split custody, sole custody, or a surrender of custody. The court will then determine how much each parent would normally be getting, and force the parent with less custody to pay their share of the support.

     Should there be an equal share of custody, the court will take the amount of money owed in the guidelines based on gross income and multiply that by 1.4. That amount will then be multiplied by the percentage of income each parent provide to the calculation. The lower amount of money owed is the one that is normally paid. To simplify; If 100$ of support is owed, then the total amount would be $140 for shared custody. If Husband contributes 60% and Wife contributes 40%, then Wife owes $56 and Husband owes $84. These two numbers are subtracted from each other, and the total left is how much Wife ultimately pays. Therefore, Wife will pay $28. These numbers may be subject to change based on certain financial and medical needs, and an attorney will need to review the case.

     However, the court does not necessarily have to follow the guidelines when assigning child support. There are some situations in which the court will provide a departure from these mandatory guidelines to determine whether or not there should be child support. Some of these considerations include; special needs of the child, special needs of the parents, and financial obligations of the couple. Obtaining a departure from the child support guidelines is incredibly hard, and most judges do not want to do this. In order to obtain a departure, you must hire an attorney.

     This is merely a brief introduction into the area of child support. There are more factors than I have listed in this brief description. Please contact an attorney if you have additional questions regarding this complex area of law.

The Role of the GAL

One of the most common questions I get about the divorce process is what the role of the Guardian ad Litem is. The Guardian ad Litem (GAL) is an attorney, appointed by the court, whose sole responsibility is to present the kid's perspective in domestic relations proceedings. A GAL may be appointed in any domestic relations case involving a child; abuse, custody, visitation, and support. One may also be appointed in a criminal trial to represent a child who cannot afford an attorney. The GAL is not an attorney for any of the other parties. They are not there to help with your case. That is the role of retained counsel. It is important to understand the duties the GAL owes you, the child, and the court.

The first important responsibility of the GAL is to the court. Virginia created the role of the GAL by passing a law. The law mandates that the GAL perform a number of responsibilities during a juvenile proceeding. First and foremost, a GAL is obligated to come and speak with the child at their home. A GAL may then choose, and has the power, to speak with the child's teacher, coaches, or any parties the GAL thinks may have insight on how the child is living. It is important that you do not attempt to interfere with the GAL's work. The GAL must also report these findings to the Court. The GAL will typically appear in any contested matter to tell the Court what is in the best interest of the child. This may not always be what you or the child want.

The second responsibility of the GAL is to the child. The GAL is obligated by law to explain the process to the child in terms that they may understand. The GAL must listen to the wishes of the child in weighing what is in their best interest. However, they may not always listen to the child.

The final responsibility of the GAL is towards the parents. A GAL appointed to your child's case owes little responsibility to the parents. They are not your attorney nor do they help you with the case. The only real responsibility of a GAL to a child's parents is to listen to what they have to say and take that into consideration when making a recommendation to the court.

These are the three roles of the GAL. They are, first and foremost, an appointed agent of the Court. They are an attorney for the child and are there to help the child. They are not there to cause you harm or hurt your case. It is best you cooperate with the GAL.