The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Monthly Archives: March 2012

Virginia Divorce Law: “Fault” vs. “NoFault” Divorce Filings

If, having exhausted all other attempts at resolving marital issues, you find yourself facing divorce as a viable option, there are a few things you should consider before any initial action is taken.  Among the important decisions to be made is the decision of whether to file for divorce on a fault or a no-fault basis.  In this post, we will take a look at each of these types of filings in the hopes of shedding some light on the differences between fault and no-fault divorce filings.

“Fault” bases for divorce usually involve contested divorce actions. These are usually expensive, time-consuming, and emotionally draining. If the fault resulted in an economic impact, fault bases for divorce can be beneficial from a financial stand point as a judge is able to allocate marital property and assets in a way to compensate for the fault. A judge is also able to order the faulting party to pay the non-faulting party’s attorney fees. Fault is usually alleged as a reason to begin a divorce suit, so that one can ask the court to freeze marital property, award temporary support and custody (pendente lite relief), and to be able to seek discovery from the other side (requiring your spouse to produce documents and answer questions under oath), which cannot be done without having first filed a divorce suit. Fault is also used as “leverage” for a settlement; divorce files are public records, and the threat of finalizing a divorce on fault grounds may produce a settlement, one term of which is usually finalizing the divorce on “no fault” grounds.

“No fault” divorces, on the other hand, require a separation period of one year (six months if there are no minor children and there is a separation agreement). To establish grounds for being separate, the parties must provide independent evidence, to meet the standard of preponderance of the evidence, that not only are the parties not engaging in marital relations, but they are not holding themselves out to the public as a married couple. Parties may live separate and apart under the same roof, as long as they limit their interactions in such a way that does not mimic a martial relationship.

While we hope that this information has been helpful, please keep in mind that this is a simplified explanation of a potentially complex legal matter.  For a more in-depth determination of your specific situation, contact Westlake Legal Group today to schedule your personal consultation.

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Bankruptcy Law: Chapter 7 vs. Chapter 13

For anyone considering seeking bankruptcy relief, understanding the bankruptcy system is of utmost importance.  For this reason, we have created a number of short articles that briefly explain some of the most essential aspects of the bankruptcy process.  In this particular post, we will be discussing the difference between Chapter 7 and Chapter 13 bankruptcy.

The laws regarding bankruptcy are found in Title 11 of the United Stated Code. Each Chapter of the Title deals with certain parts of the bankruptcy process. For example, Chapter 1 provides general provisions and definitions as they apply to the bankruptcy process. Several chapters deal with specific relief for specific types of debtors. Chapter 11 provides the rules and law for the reorganization of large companies that want to keep operating. Most individual debtors are concerned with either Chapter 7 or Chapter 13.

Chapter 7 is the most common chapter used by individuals in debt. It is considered to be the quickest and least expensive way of obtaining relief. When filing under Chapter 7, most of your unsecured debts are discharged–meaning they are eliminated and cannot be collected.  Usually you cannot eliminate taxes, student loans, or child support. You also may not be able to eliminate some debts associated with a divorce. At Westlake Legal Group, we can analyze your debts and give you an accurate prediction of the likelihood of their discharge.

Chapter 13 is referred to as an adjustment of debt and is used when a debtor has regular income and can pay his or her living expenses, but cannot make all the payments on his or her regular, scheduled debts. Essentially, the debtor cannot make all his payments but can make some contribution to paying back his debt. Often people with higher incomes are required to initially file under Chapter 13. Under a Chapter 13 filing, the Court adopts a payment plan you can afford. The plan stops the accrual of interest on unsecured debt and can require payments for up to five years. If all the debt can be paid off sooner once interest is stopped, the plan may be for a shorter period.  One is eligible for Chapter 13 relief if his or her unsecured debts are below $360,475 and his or her secured debts are less than $1,081,400.

For more information regarding Chapter 7 or Chapter 13 bankruptcy, follow this link to a helpful site, or give us a call at Westlake Legal Group to set up an appointment.

Pursuant to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), please be advised that:

We are a Debt Relief Agency.
We help people file for Bankruptcy Relief under the Bankruptcy Code.

 

Virginia Supreme Court Opinion Creates Unintended Incentive to Drive Drunk

Given the most recent decision of the Virginia Supreme Court with respect to passive “operation” of a vehicle and the application ofVa. Code § 18.2-266, I wonder how many more citizens of the Commonwealth have to die before the General Assembly and the Supreme Court stop providing unintended incentives for drunk drivers to stay on the road.

In January of last year, in Nelson v. Commonwealth, 281 Va. 212 (2011), the Virginia Supreme Court affirmed the conviction of a man who, after being found asleep behind the wheel of his car with the radio running, was charged with DUI.  In support of this conviction, the Court reasoned that, by placing the car in the “on” or ‘accessory” position so as to activate the radio but not the ignition, the defendant was, in effect, operating the vehicle and was therefore in violation of Code 182.-266.  Alarmed by the implications of this ruling, I have been anxiously anticipating some form of retort or rebuttal from the legal community for the last year.  On March 2nd, that response finally arrived.  Unfortunately, it was not exactly the response I was looking for.  Instead of objecting to or overturning last year’s ruling, the Supreme Court of Virginia further solidified their opinion by affirming the DUI conviction of a man found sleeping behind the wheel. Enriquez v. Commonwealth, 2012Va. Lexis 49,March 2, 2012.  In doing so, I believe the Supreme Court has inadvertently signed the death warrant of untold drivers and passengers onVirginia highways.

In Enriquez,  the Defendant was originally investigated by the police after a parking meter attendant tried to ticket his car for being illegally parked in a bus zone and discovered him asleep inside.  Unable to rouse the man by knocking on the window, the attendant called the police and the situation progressed from there.  Ultimately, he was charged with (and later convicted of) DUI because he had the keys in the ignition so he could listen to the radio while his engine was off and car in park.

While some may not question the Defendant’s eventual conviction, my issues lies with the logic applied by the Supreme Court in reaching its decision.  Following previous cases, the Supreme Court engaged in an analysis  that focussed on whether a key was in a particular position in the ignition.  Va. Code § 18.2-266 prohibits a person under the influence from driving or operating a motor vehicle on the highways.  In Enriquez, the Supreme Court spends considerable effort stretching the definition of “operate” to now include merely having the keys in the ignition, even if the engine is off and the car is in park.  In its efforts in expanding the logical definition of “operate”, the Supreme Court has created a perverse incentive for drivers that will result in more deaths on theVirginia highways.

Because the Supreme Court’s reasoning criminalizes the simple act of turning on the heat on a cold night, or of listening to the radio, while  being drunk in a car, this opinion creates an incentive for drunk drivers, or those who feel the beginnings of impairment, to stay on the road.  There is no benefit to these drivers in stopping and resting and ensuring they are going to be safe.  As such a driver faces a criminal penalty if he stops and is caught, he has an incentive to keep going and to try to reach the safety of home.  Frankly, that is the last thing I want:  implicit encouragement to drunk drivers to stay on the road.  Based on the Court’s extension of previous cases, I fully expect it to find that the mere possession of car keys, when one has a push button ignition in his car, to be construed as “operating” the vehicle.  Again, more incentive not to stop, more incentive to stay on the road, more likelihood of killing someone.

I understand that drunk driving is a hot political button.  Every officer in the state makes a DUI inquiry during every traffic stop.  However, in non-alcohol related cases, the General Assembly has already provided an incentive for tired drivers to get off the road.   Under Virginia Code 46.2-830.1, the act of parking one’s car on the shoulder in order to rest is encouraged by removing any serious penalty for drivers who do so because they are feeling drowsy or tired.   Conviction for sleeping on the side of the road is a no demerit point offense.  The General Assembly has recognized that it wants tired drivers to get off the road.  It shouldn’t matter if he is tired because he has been up for twenty-four hours or because he has had too much to drink.  That driver needs to be off the road.  Instead, if the driver who has too much to drink does what society wants and pulls over to sleep, he faces a greater chance of being discovered and punished as a criminal, especially if one were to pull over in winter and need heat to stay alive while he sleeps.   Faced with that outcome, many a drunk driver will take the chance of getting home.  And, more people will be in accidents and more people will die.  It is the law of unintended consequences.

Now that the Supreme Court has spoken in Enriquez, our only hope is that the General Assembly overturns the Supreme Court’s decision through legislation.  I am not holding my breath.

How to File a Complaint with the Sheriff’s Office

The purpose of this post is to inform Loudoun County residents  of their ability to file a civilian complaint against any deputy or employee of the Loudoun County Sheriff’s Office, should they find reason to do so.  As a disclaimer, I have no intention of being malicious or confrontational towards the Sheriff’s department, nor do I mean to suggest that they have done anything as of late to warrant a complaint.  I was simply motivated by watching the following YouTube video, in which a number of citizens are threatened, harassed, and even arrested solely because they asked how to file a complaint with their local police department.

Fortunately,  Loudoun County residents should never have to worry about being subjected to such extreme treatment for filing a complaint, as the  Sheriff’s Office provides an online form that allows complaints to be sent in at any time.  For a link to that site, click here.

If you are a resident of any other county in Virginia, or if you would like assistance in filling out a complaint, please feel free to leave a message at the bottom of this post and we will do our best to provide you with further information.