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FAQ

Criminal Proceedings

I have been arrested in Virginia; what happens next ?

What happens after an arrest differs slightly depending upon whether you were released on bond before your arraignment or not.

If you were released on bond shortly after arrest, you can expect to receive a summons directing you to appear in court for an arraignment on a certain date. That will be your next day in court. If you were not released, you will be held until you are brought to court for an arraignment and, if you request, a bond hearing.

The next step depends on whether you are charged with a misdemeanor or felony and whether your charge is one that will be heard in the Juvenile and Domestic Relations Court.

If you are charged with a misdemeanor or a charge that will be heard in the Juvenile and Domestic Relations District Court , your next day in court will be your trial date. If you are charged with a felony, you will first be offered a preliminary hearing in the General District Court and then your trial will be in the Circuit Court.

Depending upon the nature of your case and if you are found guilty, the judge may request that sentencing be set for a later date pending a pre-sentencing report.

What happens at an arraignment in Virginia ?

At arraignment, the Court will read the charges that are brought against you and ask whether or not you would like to seek court appointed counsel .The Court will take into account your income and expenses in determining whether or not you qualify for court appointed counsel. The Court will also set a date for your trial or preliminary hearing.

What happens at a bond hearing in Virginia ?

At a bond hearing, you have the opportunity to present to the Court why you should be given bond and at what level the bond should be set at. The Commonwealth’s Attorney will present anything he or she thinks proves that you are either violent or a flight risk. Then, the judge will determine whether or not you can be released on bond and at what level to set that bond.

What are the different types of bonds in Virginia ?

There are a few types of bonds in Virginia:

1. Recognizance bond – No amount of money is set for bond. The court is trusting that you will appear of your own accord on the court date

2. Unsecured bond – A certain amount of money is set for bond, but you are not required to put up any money initially. You only need to pay if you do not show up for court.

3. Secured bond – A certain amount of money is set for bond, and you will need to hire a bondsmen to front a portion of the money to the court.

What if I didn’t make bond ?

In Virginia, you have the opportunity to appeal a bond hearing to the Circuit Court if you feel you may fare well there. The appeal must be noted soon after the bond is denied by the lower Court.

What is a preliminary hearing ?

In Virginia, a preliminary hearing is held for felony cases in the General District Court. The purpose of a preliminary hearing is for the Court to determine whether there is probable cause that you committed the crime. If the Court finds that there is probable cause, they will certify the case for trial at the Circuit Court. If the court does not find probable cause, it will dismiss the case.

The preliminary hearing may give you good insight as to where the Commonwealth’s strengths and weaknesses are regarding your case. Rarely is it appropriate to waive your right to a preliminary hearing, however, there may be times where it is appropriate and even crucial to waive that right.

I think my Constitutional rights may have been violated, how can I know and what does that mean ?

You have a number of Constitutional rights that are important in a criminal matter, from the right to remain silent to the right to the right to a speedy trial. The remedy for a Constitutional violation is generally an exclusion of evidence but can also be as extreme as dismissal of a charge. It is important to explore all issues before going to trial.

 

Can I have my sentence reconsidered ?

There is a provision in the Virginia Code that allows for an individual’s sentence to be reconsidered as long as that person has not been removed to the Department of Corrections. The court will take into account a number of different factors when reviewing a person’s sentence and it is important to prepare thoroughly before asking the court to reconsider your sentence.

 

Divorce

My spouse and I have separated, when can I get a divorce?

After a separation, parties can get divorced after one year. However, if there are no minor children and if the parties sign an agreement concerning property division, support, and child custody, the parties can get divorced after six months from the time of separation.

If the divorce is based on adultery or the other spouse committing a felony and being sentenced to more than a year of incarceration, there is no waiting period.

 

How does property division work in Virginia?

First, Virginia considers certain property “marital property” that is subject to division upon divorce. Marital property is any property acquired during marriage. This can include tangible objects like real estate and vehicles as well as intangible property like military retirement, life insurance, and retirement benefits.

Virginia courts start with a clean slate, presuming that all property will be split equally between the parties. Then, the court will take into account externalities such as:

-The age and health of the parties

-The length of the marriage

-The circumstances that contributed to the breakdown of the marriage

-Each individuals contribution to the marriage

-Anything else the court deems equitable

We have children; what will happen to them?

Virginia courts favor giving parents joint legal and physical custody. Legal custody is the parent’s ability to make choices regarding the child’s medical care, education, and religious upbringing. Joint physical custody means that each party is entitled to equal time with the child.

In deciding whether or not to grant joint legal or physical custody, the court will determine what is in the best interests of the child. In determining what is in the best interests of the child, the court will look into the following:

– The reasonable interest of the child

– The medical needs of the child

– The relationships the child has developed with close relatives

– Any incidences of past abuses

– The party’s ability to care for the minor child

I already pay/receive child support, can I get it changed??

If you pay or receive court ordered child support, you may be able to get it changed. Virginia requires that, in order to change child support obligations, you must prove two things: (1) A substantial change in circumstances, and (2) that the changed circumstances warrant a change in child support.

A change in circumstances can be any number of things, as long as the change is one that the court would consider substantial. Events that may qualify as a change in circumstances may include loss of a job, substantial increase/decrease in income, or a child graduating high school or turning 18.

The change in circumstances warrants a change in child support when the change either substantially impairs the payors ability to pay or substantially increases the income available to the payor.

In deciding whether or not to grant joint legal or physical custody, the court will determine what is in the best interests of the child. In determining what is in the best interests of the child, the court will look into the following:

– The reasonable interest of the child

– The medical needs of the child

– The relationships the child has developed with close relatives

– Any incidences of past abuses

– The party’s ability to care for the minor child

DUI

What is the law in Virginia regarding DUI ?

In Virginia, it is against the law to operate a vehicle while intoxicated. A person is intoxicated when their blood alcohol concentration is above 0.08 percent or more by weight or volume. A person does not necessarily have to be in motion to be operating a vehicle; simply turning the ignition can violate the statute. Additionally, the vehicle does not have to be on a public roadway for a person to violate the statute.

Do I have to take a breathalyzer test ?

Virginia has what is called an “implied consent” stature regarding a breathalyzer test. A person who operates a motor vehicle on a highway is deemed to have consented to a breathalyzer if they are arrested for driving under the influence. It is against the law to refuse to a test under such circumstances. If you do refuse and do not have reasonable grounds to do so, your refusal could be used against you in court and, depending upon your prior driving record, you could be punished separately for your refusal.

I have more than one DUI on my record already; how that effect my trial ?

Virginia takes DUI very seriously. As such, there are significant penalties for subsequent offenses. For example, if you are convicted of a DUI within five years of a previous DUI, the fine increases from a mandatory minimum of $250 to $500 and the jail sentence increases from no minimum to a minimum of one month, twenty days of which cannot be suspended. A person convicted of three DUI within ten years is guilty of a felony with heavy fines and jail sentences.

Does it make a difference what my blood alcohol level is ?

In Virginia, your sentence changes the more your blood alcohol concentration is. If your BAC was at least .15, the court is require to sentence you to at least five days in jail. If your BAC is more than .20, the mandatory jail time increases to ten days. The change in BAC also changes the sentence in subsequent offenses.

Estate Planning

What is Estate Planning?

In the United States, you have a right to determine who receives your property after your death. You also have the right to have your wishes known and followed in the event of your incapacity. Estate planning is the processes of crafting legal documents that ensure your wishes are known and can be easily followed in the event of your incapacity or death.

Why is it important to create an estate plan?

Unfortunately, many do not create an estate plan because they believe they do not have enough assets justify planning, or mistakenly believe that their property will automatically be left to their loved ones. This is often not the case. If you have any assets titled in your name at the time of your death, assets including real property, financial accounts, business interests, or vehicles, your estate will go through probate, an expensive and lengthy public judicial process that transfers ownership of the assets to your heirs, as determined by Virginia's intestacy statutes. The average probate in Virginia takes 18 months.

With proper estate planning, much of the hassle and cost of probate can be reduced or eliminated entirely, and you can rest easily knowing your loved ones will be protected.

What is included in my estate?

Your estate is everything you own at the time of your death. That includes your home, business interests, financial accounts, retirement accounts, life insurance policies, and any other property you may own.

What are the different types of estate planning documents, and what do I need?

A comprehensive estate plan can be prepared by one of our attorneys after comprehensive counseling to take into account your unique situation and needs.

There are four documents generally used in estate planning: the Advanced Medical Directive, the Durable Power of Attorney, the Last Will & Testament (Will), and the Revocable Living Trust (Trust).

The Advanced Medical Directive and the Durable Power of Attorney are incapacity planning documents that are used to protect you during your lifetime in the event you are unable to act or express your own wishes. The Advanced Medical Directive is a document that allows you to outline your wishes regarding your medical care, end of life decisions, and appoint a person, known as a Healthcare Agent, to act and make medical decisions on your behalf if you are incapacitated.

The Durable Power of Attorney is a separate document but acts in a similar fashion. The Durable Power of Attorney allows you to appoint a person, known as the attorney-in-fact, to act on your behalf for financial and legal matters. Simply put, if you are incapacitated, laying in a hospital and needing surgery, the Advanced Medical Directive allows the person you choose to authorize the surgery, and the Durable Power of Attorney allows the person you choose to pay the hospital's bill for your surgery.

Wills and Trusts are documents that plan for the event of your death. The Will is a basic document that operates at the time of your death, transferring your assets to the people you chose after your death. A Will can be changed or terminated at any time before your death, and only becomes effective after being submitted to the court for probate. A Will appoints a person known as an Executor, who is a person you chose to carry out your wishes. If you have minor children, you can may also name one or more people to act as Guardian to care for them.

A Trust is an advanced estate planning mechanism that allows you to avoid the hassle and cost of the judicial probate process. A Trust is an agreement, similar to a contract, between you as “Grantor” and you as “Trustee.” The Trust is “revocable,” meaning you continue to retain use and control over your property, and the Trust can be changed or terminated at any time. Unlike a Will, a Trust becomes effective immediately upon your death. A Trust is also more private and efficient than a Will. Unlike a Will, which must be probated through a public judicial process and becomes a public record after your death, a Trust is a private document that is normally only seen by you and your loved ones. Because Trusts can avoid the slow and expensive probate process, they are also more efficient, transferring property to your loved ones immediately at your death, or in any time-frame you desire.

I own firearms, do I need a gun trust?

Firearms are unusual property in that there is a large amount of both State and Federal regulation on the possession, use, and transfer of certain types of firearms. Firearms and accessories that are regulated under Title II of the Gun Control Act of 1968 or the National Firearms Act of 1934 are far more heavily regulated and may even expose owners to criminal liability if proper safeguards are not taken. NFA Gun Trusts are unique trusts heavily tailored to meet these requirements.

How does a NFA Gun Trust differ from an ordinary revocable living trust?

NFA Gun Trusts are unique trusts heavily tailored to meet the stringent requirements under Title II of the Gun Control Act of 1968, the National Firearms Act of 1934, and regulations promulgated by the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives. A failure to comply with these statutes and regulations may result in civil or criminal liability to the transgressor. NFA Gun Trusts are designed to meet all federal and state requirements to own, possess, and transfer these types of firearms, while providing a safe, legal, and convenient way to own and use your firearms.

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