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Frequently Asked Questions

Bankruptcy – Domestic Relations – DUI – Reckless Driving

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What is Bankruptcy?
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What is Bankruptcy

Bankruptcy is a declaration by honest debtors that, due to unforeseen circumstances, can no longer pay their bills. It is a process where the Bankruptcy Courts and Trustees review the debtor’s situation and, if appropriate, either eliminate all his/her debts, or stop the accruing of interest and permit the debtor to make payments on his/her debts for up to five years. The purpose of bankruptcy relief is to give honest debtors a fresh start in their financial lives.

What is Bankruptcy?
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What is Bankruptcy

Bankruptcy is a declaration by honest debtors that, due to unforeseen circumstances, can no longer pay their bills. It is a process where the Bankruptcy Courts and Trustees review the debtor’s situation and, if appropriate, either eliminate all his/her debts, or stop the accruing of interest and permit the debtor to make payments on his/her debts for up to five years. The purpose of bankruptcy relief is to give honest debtors a fresh start in their financial lives.

If I file for Bankruptcy, will I lose my property?
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If I file for Bankruptcy, will I lose my property?

Because a person has the potential of having all his or her debts completely eliminated, the Bankruptcy Courts and Trustees must review the debtor’s situation to ensure they really qualify for the fresh start. In doing that review, the Courts and Trustees can look at your property and determine if it can be sold to pay some debts. However, this is not done randomly and the Courts and Trustees are bound by strict limitations on their ability to take and sell any property. No property can be sold unless it produces a certain amount of revenue after the costs of sale, the satisfaction of any outstanding liens, the trustee’s fee, taxes, and exemptions are applied. Generally, unless you have something valuable that the Court or Trustee can sell and get more than about $5,000.00 for, the court will not sell it.</p> <p>Practically speaking, most people keep everything they own. Only about one percent (one person out of a hundred) has the Bankruptcy Court sell something they own. In those rare cases, usually only one item is sold and the debtor keeps the rest of his or her property. Virginia law allows you to keep your furniture, clothes, and car up to certain limits of value (often called the exemption amount). The law also gives you the right to protect other assets such as bank accounts, cars and tools used in your work, family heirlooms, etc. up to certain limits.</p> <p>In Virginia, each debtor has, at a minimum, a $1000 exemption for clothes, $5000 exemption for household goods, $2000 exemption for a car not used in business, and a $5000 exemption for cash. These exemption amounts are applied to the equity in a property after considering all liens. The limits of value are calculated at garage sale or thrift store values. Thus, virtually no one has clothes or household goods worth selling by the trustee. If you are married, these limits apply for each spouse, so, for example, a couple has a $10,000 exemption for household goods. Further, the Court or Trustee cannot sell certain family heirlooms, such as your engagement or wedding rings. Also, a debtor’s 401(k), IRA, or other qualified retirement plan cannot be touched. Thus, you could have several hundred thousand dollars in a 401(k), file for bankruptcy relief, and keep your entire retirement account.</p> <p>For example, a person who has clothes, household furniture, $3,000 in the bank, $100,000 in a 401(k), and a car worth $15,000 but with a loan balance of $13,000, would keep all of his property if he sought protection under the bankruptcy code.</p> <p>Whether one keeps a house usually depends on two factors: 1) whether one is married or single, and 2) whether there is any equity. Because married couples in Virginia usually hold title as tenants by the entirety with the common law right of survivorship (this language is on the deed), the Bankruptcy Court or Trustee usually cannot order the house sold if only one spouse is declaring bankruptcy, regardless of how much equity is in the property. This does not apply if federal tax liens or federal agricultural loan liens attach to the property.</p> <p>Further, if one is single or if both spouses are jointly filing, just as with other property, the Court or Trustee would have to realize more than $5000 from the sale of the property after paying off the mortgages, taxes, realtors and other costs of closing, and his fee, in order to sell the property. If the Court or Trustee can realize more than $5000, a house may still be protected from sale through other application of other provisions of the bankruptcy law, such as filing under Chapter 13 (a discussion of the difference between chapters is found in another FAQ).</p> <p>At Westlake Legal Group, we are prepared to look at all of your assets, determine the equity in them, assess the status of title, and make a recommendation as to how one should proceed through the bankruptcy process.

What Are The Bankruptcy “Chapters”?
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What Are The Bankruptcy “Chapters”?

The laws regarding Bankruptcy are found in Title 11 of the United Stated Code. Each chapter of that 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.</p> <p>Chapter 7 is the most common chapter used by individual debtors. 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.</p> <p>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.

If I file for Bankruptcy relief, do I have to identify all of my assets?
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If I file for Bankruptcy relief, do I have to identify all of my assets?

Regardless of which Chapter you use when filing for relief under Bankruptcy, you must disclose all of your assets and all of your debts. This requirement is made to ensure that all creditors are treated equally, regardless of whether they ever receive any payment. If you do not disclose all of your assets, you could have the bankruptcy dismissed. Depending on the nature of the non-disclosure, you could also be subject to criminal charges. If you do not disclose all of your debts, you run the risk of the non-disclosed debt not being discharged.

What is the process for a Chapter 7?
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What is the process for a Chapter 7?

If you feel you want to discuss your options for filing for Bankruptcy relief, schedule an appointment with Westlake Legal Group. Bring with you a list of your assets and your current bills. We will ask you to fill out a questionnaire with regard to those assets and bills. Often, we will ask you to do that at a computer in our office. We will also provide you with certain required notices. We will ask you to authorize a credit report, which will be ordered and sent to us.</p> <p>After we get your information, we will apply what is called the “means test.” This is a test based on income to give a preliminary determination of your eligibility to apply for relief under Chapter 7. You are automatically eligible to wipe out your debts with a Chapter 7 bankruptcy if you are below the average income for your family size in Virginia. As of April 19, 2010, the averages for Virginia are:</p> <p>Family Size* One Person Two People Three People Four People Five People<br /> INCOME $48,190 $64,890 $73,887 $85,633 $93,133<br /> *Add $7500 for each person in excess of four</p> <p>If your family income falls below those listed above, you are automatically entitled to relief under Chapter 7. If you exceed those limits, an additional analysis needs to be performed.</p> <p>If your family income exceeds the average as identified above, you may still be eligible for a Chapter 7 filing. To determine that, Westlake Legal will evaluate your specific case. We will determine your “disposable income” after deducting certain expenses from your income.</p> <p>If your projected disposable income over the next five years is less than approximately $175 per month, you will likely be eligible for Chapter 7 relief. If you have more than approximately $175 disposable income per month, you may only be allowed to use Chapter 7 if you can demonstrate special circumstances, such as on-going medical situation. Otherwise, you may have to consider filing under Chapter 13.</p> <p>Once we have determined that you are eligible for filing under Chapter 7, we will ask you to take an online credit counseling course. This is usually done in our office. Once completed, we will prepare the necessary paperwork, with your assistance, and file with the Bankruptcy Court.</p> <p>Once we have filed, you will be required to take another online course, this one on financial management. This is also usually done in our office. This must be completed before you can receive a discharge.</p> <p>Approximately 30 days after filing, the Trustee will conduct a hearing to verify the information placed in the Bankruptcy Petition and to ask questions about any equity in highly valued assets. After the Trustee’s hearing, the Trustee sends notice to creditors and gives them approximately 60 days to make inquiry and object to the discharge, if a reason exists. After the 60 days, assuming there are no objections, the Court enters a final Order of Discharge and the case is ended.

What is the process for a Chapter 13?
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What is the process for a Chapter 13?

A Chapter 13 case follows the same process as a Chapter 7 case from initial consult through determination of eligibility for a Chapter 7 via the application of the “means test”. Once it is determined that you are not eligible for relief under Chapter 7, Westlake Legal Group will begin to prepare your application for relief under Chapter 13.</p> <p>When filing under Chapter 13, Westlake Legal Group will propose to the Chapter 13 Trustee a payment plan that sends him your disposable income to be used to pay off your creditors. The payment plan cannot exceed your disposable income and the plan cannot exceed 60 payments (5 years). Unless your plan allows you to pay off all your debts in fewer than 60 payments, you should count on a 60 month plan. At the end of the plan term, the remaining debts (with a few exceptions) are eliminated, just as in a Chapter 7 case. While the plan is in effect, you do not pay interest on most debts. You may also pay a portion of your legal fees through the plan</p> <p>At the moment Westlake Legal Group files your Petition for relief under Chapter 13, legal and collection actions must stop. This “stay” applies to foreclosures, garnishments, repossessions, and any other lawsuit. The first payment of the plan is due no later than 30 days after filing. This payment is due even if the plan is not ultimately approved. Failure to make this payment will result in an automatic dismissal of your case.</p> <p>One other important obligation, incurred as a result of being granted the “stay” upon filing, is that you must keep all of your regularly incurring debts current. These include house payments, car payments, and any other secured installment payment.</p> <p>It is also important to realize that the Trustee will not send you a monthly reminder. It is up to you to make sure your payments are received by the Trustee on time. In addition, the Bankruptcy Code requires that a payroll deduction order be entered so that your employer pays the Plan payment directly to the Chapter 13 Trustee. However, you are responsible to ensure the payment is made. If your employer fails to make the payment for some reason, your case can be dismissed.</p> <p>Once the Petition and plan are filed, if the Trustee recommends approval of the plan, you will receive a Confirmation Order setting forth the duration of the plan, the amount of payment, and other obligations. If the Trustee does not initially approve the plan, or a creditor successfully objects to the plan, we have to file an amended plan or attend a hearing. It is imperative that you continue to make your plan payment even if there is an objection or a request to submit an amended plan.</p> <p>After the plan is filed, as in a Chapter 7 case, the Trustee will conduct a hearing to verify the accuracy of your Petition and to determine the status of your assets and income. Creditors have 90 days from that hearing to file a proof of claim in order to receive some payment from the plan (governmental units, like the IRS, have 120 days). Usually within six months of filing, the Trustee’s office will send a report called “Notice of Intent to Pay Claims.” You will have 30 days to object to any amounts claimed in the report, otherwise the debt will be deemed valid and paid in the Chapter 13 case.</p> <p>If the plan does not call for paying all debts in full, every year you will be required to provide signed copies of your Federal and States tax returns to the Trustee within 10 days of their filing. Westlake Legal Group will also assist you in determining the proper number of tax exemptions to take from your employer, as all tax refunds in excess of $250.00 must be paid to the Trustee as an additional payment for the benefit of your creditors.</p> <p>Every six months, you will receive a report from the Chapter 13 Trustee’s office listing the payments received and to whom payments have been made during that period. This report should be reviewed to ensure consistency. Approximately 6 to 8 months after filing, the Chapter 13 Trustee will conduct a short, half-hour meeting to review your case.</p> <p>Information regarding your Chapter 13 filing and the specifics of its administration are available as matters of public record, and the financial details of your case will be disclosed to parties in interest.</p> <p>When you are finished making all of the payments in the plan, as directed by the Confirmation Order, the closing procedure will begin. If you are paying less than 100% to your unsecured creditors, you must file all the appropriate tax returns in order for the case to be closed. After all required information and payments have been received, the Chapter 13 office will issue an order to stop your payroll deduction. Any overpayments will be refunded after your case has its final audit. If you pay 100% of your debt, you can pay your case off early. After all the requirements of your case have been satisfied, you will receive your discharge papers from the Court in approximately four to six weeks.

What happens if I miss a payment under my Chapter 13 plan?
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What happens if I miss a payment under my Chapter 13 plan?

It is important not to miss any payments to the Trustee. If you miss a payment, the Trustee cannot pay your creditors as called for by the Plan and the Trustee may be obligated to file papers with the Bankruptcy Court asking that your case be dismissed. If your case is dismissed, your creditors will be notified, and they may resume collection against you.<br /> If there is a serious change in your circumstances that affects your ability to make payments under the plan, contact Westlake Legal Group immediately. DO NOT MISS A PAYMENT. We will notify the Trustee. We will also review your status, and possibly seek to modify your plan.

Can I purchase a car while in the Chapter 13 plan?
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Can I purchase a car while in the Chapter 13 plan?

It is possible to purchase a vehicle while under a Chapter 13 plan. However, this requires approval of the Trustee and may require an amended budget or plan to determine if you have the ability to make the purchase.

Can I sell or refinance my home?
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Can I sell or refinance my home?

If you are single, or married with both spouses filing, and file for relief under Chapter 7 and the Trustee abandons your property (agrees not to sell it), you can keep your home as long as you continue to make the payments. You are also free to sell or refinance your home.</p> <p>If you file as a single person, or married with both spouses filing, and are filing for relief under Chapter 13, in order to sell or refinance your property, you are required to obtain a court order prior to doing so. In addition, you need to notify the Trustee and all creditors. If you are refinancing, and your plan requires you to pay less than 100% of your debts, you will be required to pay 100% back to your creditors.</p> <p>In a Chapter 13, all proceeds from the sale or refinance of your property must be paid into the plan for payment to any remaining creditors. Upon the completion of the sale or refinance of your home, you are required to provide a copy of the HUD-1 to allow adjustment of the debts in your plan.


FAQ-Domestic Relations

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On what basis can one get a divorce in Virginia?

There are four grounds for divorce in Virginia. These are identified in Virginia Code Section 20-91. The first three are usually considered “fault” grounds and the last is considered a “no-fault” ground for divorce. The grounds are (1) adultery or sodomy and buggery outside the marriage; (2) when one party had been convicted of a felony and confined in prison for more than one year; (3) cruelty, causing reasonable apprehension of bodily hurt, desertion or abandonment; and (4) having lived separate and apart without any cohabitation and without interruption for one year.

1. Adultery: Adultery is the act of having sexual relations with someone other than your spouse. Most importantly, in order to qualify as a grounds for divorce, the adulterous conduct by one of the parties must be the reason for the disintegration of the marriage. There have been many defenses that attempt to show disintegration prior to an adulterous act. In some states, you are free to have relations after you separate. In Virginia, it is considered adultery to have sexual relations with another at any time while you are married. This is an important distinction. There is no statutory waiting period for divorces based on adultery.

Because adultery is a misdemeanor in Virginia, you must prove adultery by “clear and convincing” evidence. You do not need to catch your spouse “in the act.” It is sufficient to establish time and opportunity of circumstance as well as an inclination to act. One needs an independent witness even if your spouse admits his or her infidelity.

When confronted with adultery, one needs to address issues with a counselor and decide whether one is capable of resurrecting the marriage. One also needs to decide if it is worthwhile to pursue the divorce on these grounds from an emotional as well as financial perspective.

2. Desertion and Cruelty:

a. Desertion occurs when one spouse leaves the marital home and such leaving is not agreed upon by the remaining spouse. The party leaving must also desire the separation to be permanent. A cooling off period is not desertion, nor is a trip or a separate vacation. If both parties agree to a separation, one does not have grounds for desertion. If one alleges desertion, the alleging party must show that the leaving spouse intended the separation to be permanent and that his or her leaving was not condoned in any way by the one who remains. There is a one year statutory waiting period for divorce based on desertion. Once a divorce action is filed, it is not desertion to leave the marital home.

b. Desertion requires the concept of “clean hands.” Although a gradual breakdown in a martial relationship is not a legal justification for leaving, the person remaining must show that he or she did nothing to cause the other to leave. This does not mean that one cannot leave, only that he or she should be sure they can justify leaving.

c. Cruelty is one form of justification of leaving. It usually requires some form of physical violence or reasonable apprehension of bodily harm. Harm can be both physical and emotional. Usually one act does not trigger an ability to get a divorce based on cruelty. For one act to qualify, the act must be so bad that any reasonable person would be shocked upon hearing of it. Unfortunately, a slap does not usually reach this level of shock, but repeated slapping does. Thus, minor instances which are repeated can qualify as grounds for a divorce based on cruelty.
The Court can find that a cruel spouse is guilty of “constructive desertion” when that spouse’s acts cause the other spouse to leave the marital home to escape further acts of cruelty. The standard of proof for desertion and cruelty is a “preponderance of the evidence.”

d. Felony Conviction. Felony conviction during marriage for which your spouse is sentenced to more than l year in jail and cohabitation with your spouse is not resumed after knowledge of the confinement.

What should I consider in deciding whether to file on a fault basis or a no-fault basis?

”Fault” bases for divorce usually involve contested divorce actions. These are usually expensive, time consuming, and emotionally draining. They 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, if the fault resulted in an economic impact. 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 also 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.

How is property divided in a divorce?

Property is categorized three ways in a divorce action: Marital Property, Separate Property, and Mixed Property. One of the major goals of any divorce action is to preserve property. Thus, many times, one will allege a fault ground, if such a basis exists, so that the Court can immediately make a temporary ruling with regard to the use and disposition of marital property. In deciding how to allocate property, the court is required to make an “equitable” distribution of property. Please note that “equitable” and “equal” do not mean the same thing.

1. Marital Property: Marital property is all property that is either jointly titled or acquired during the marriage other than by gift from third persons or by inheritance. This includes that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if the separation was intended to be permanent. The Court’s powers with regard to titled property are limited. The Court may award jointly titled property to either party, or order the sale of jointly titled property and the proceeds split a certain way. However, separately titled property cannot be given to the non-title holder. Nevertheless, the Court can award monetary compensation to the non-titled owner to offset any gain in marital distribution derived from being the sole titled owner. When making a monetary award, the Court can consider the following factors as identified in Virginia Code Section 20-107.3(E):

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

b. The contributions, monetary and non-monetary, of each party in the acquisition and care and maintenance of such marital property of the parties;

c. The duration of the marriage;

d. The ages and physical and mental condition of the parties;

e. The circumstances and factors which contributed to the dissolution of the marriage, specifically including any ground for divorce;

f . How and when specific items of such marital property were acquired;

g. The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities;

h. The liquid or non-liquid character of all marital property;

i. The tax consequences to each party; and

j. Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.

2. Separate, non-marital property: Separate, non-marital property is all property acquired before the marriage in the sole name of either party, and all property acquired during the marriage by gift from third persons or by inheritance, or with the proceeds of separate property, as long as the proceeds of such non-marital property have themselves been kept separate during the marriage. Income derived from separate property is deemed to remain separate property. The Court has no authority to order the division or transfer of separate property.

3. Mixed property: Separate property can be partially converted to marital property and is referred to as mixed property. Income from separate property can be considered martial property to the extent that it is attributable to the significant personal efforts of either party. The non-owning spouse has the burden of showing that the increase is due to his or her personal efforts. When separate and marital property are commingled, the class of property is considered transmuted to the category of property receiving the contribution unless the contributed property is retraceable by a preponderance of the evidence, and was not a gift. When separate and marital property are commingled to purchase or acquire other property, the newly acquired property shall be considered marital property unless the separate property is traceable.

Can one stop a spouse from using or selling marital property while the divorce is pending?

Relief during the divorce process. Until the final divorce decree, the Court lacks the authority to distribute property. Although the Court may award temporary spousal and child support, as well as exclusive use of the marital home, the Court may only order an injunction denying each party the right to dispose of property until a final divorce hearing. Asset inventory is important to protect your rights with regard to property.

How can I determine if I will receive spousal support?

Initial Award: Spousal support, both temporary and permanent in nature, is awarded in accordance with Virginia Code Sections 20-103 and 20-107.1. If someone is granted a divorce based on the fault ground of adultery, the adulterous spouse will normally not be awarded spousal support. The Court considers the following factors when deciding whether to award spousal support and the amount of such award:

1. The earning capacity, 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;

2. The education and training of the parties and the ability and opportunity of the parties to secure such education and training;

3. The standard of living established during the marriage;

4. The duration of the marriage;

5. The age and physical and mental condition of the parties;

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

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

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

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

Is someone automatically entitled to spousal support?

One often is not considered entitled to spousal support, especially if they can earn a livable wage. Parties are always free to separately negotiate spousal support. If spousal support is set by an agreement of the parties instead of by the Court, the amount of spousal support can never be modified unless the parties’ agreement gives the Court the authority to do so. If the Court sets a spousal support award, either side may later petition for an increase/decrease based upon a change in circumstances. Usually spousal support is not a permanent nature if awarded by the Court. The Court may eliminate spousal support based upon clear and convincing evidence that the spouse receiving spousal support has died, remarried, or has been habitually cohabiting with another person (male or female) in a relationship analogous to marriage for one year or more. The only defense to such an elimination is to show that the parties have agreed that such support be permanent or show that the elimination would constitute a manifest injustice.

How does the Court determine custody?

In General, custody is always based on the best interests of the child and not on the preference or interests of either party. A distinction is usually made between legal and physical custody. The Court is not obligated to award custody to either parent. However, usually, the court awards either sole custody to one parent, joint legal custody with the primary residence to one parent, or joint legal and shared physical custody, where the children spends at least 90 days per year with each parent.

1. Virginia Code Sections 20-124.2 and 20-124.3 establishes that the Court will assure frequent and continuing contact between the parties and their children and that there will be no presumption or inference of law in favor of either parent being the custodian. Section 20-124.3 sets forth those factors the Court may consider when determining the best interest of the child with regard to custody and visitation. These are:

a. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

b. The age and physical and mental condition of each parent;

c. The relationship existing between each parent and each child, giving due consideration to the possible involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

d. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

e. The role which each parent has played and will play in the future, in the upbringing and care of the child;

f. The propensity of each parent to actively support the child’s contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in matters affecting the child;

g. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

h. Any history of family abuse; and

i. Such other factors as the court deems necessary and proper to the determination.

If my spouse committed adultery, will that help me get custody of our children?

Fault grounds for divorce play little role in custody decisions. Adultery only has an effect if a child is exposed to the paramour in a situation that suggests that the spouse and paramour are sleeping together. Cruelty can be a factor as long as the cruelty is directed toward the child or the non-cruel spouse can show that the cruel spouse is sufficiently unstable. Desertion only is a factor if the deserting spouse also is deserting the child. Any spouse who still attempts to make regular contact with his or her child after leaving should not be affected by the fault ground of desertion. Homosexuals are not normally considered qualified for custody in the State of Virginia.1. Virginia Code Sections 20-124.2 and 20-124.3 establishes that the Court will assure frequent and continuing contact between the parties and their children and that there will be no presumption or inference of law in favor of either parent being the custodian. Section 20-124.3 sets forth those factors the Court may consider when determining the best interest of the child with regard to custody and visitation. These are:

a. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

b. The age and physical and mental condition of each parent;

c. The relationship existing between each parent and each child, giving due consideration to the possible involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

d. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

e. The role which each parent has played and will play in the future, in the upbringing and care of the child;

f. The propensity of each parent to actively support the child’s contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in matters affecting the child;

g. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

h. Any history of family abuse; and

i. Such other factors as the court deems necessary and proper to the determination.

How is child support determined?

 Families in Transition Support Program. Virginia Code Section 20-103, authorizes a Court to order parties with a minor child to attend educational seminars on the effects of separation or divorce on minor children, parenting responsibilities, options for conflict resolution, and financial responsibilities. Any couple getting a divorce in Loudoun County will be required to attend the Families in Transition Support (“FITS”) Program, though you do not have to attend with your spouse.a. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

b. The age and physical and mental condition of each parent;

c. The relationship existing between each parent and each child, giving due consideration to the possible involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

d. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

e. The role which each parent has played and will play in the future, in the upbringing and care of the child;

f. The propensity of each parent to actively support the child’s contact and relationship with the other parent, the relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in matters affecting the child;

g. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

h. Any history of family abuse; and

i. Such other factors as the court deems necessary and proper to the determination.

How is child support determined?

A child is entitled to the same financial support after divorce as was available prior to divorce. Both parties are responsible for child support and support is initially determined by application of Virginia Code Section 20-108.2, the state guidelines for child support. Each parent is expected to pay a pro rata share of the child support which is calculated based on the gross incomes of the parents, the costs of daycare, cost of health insurance, and costs of extraordinary medical expenses. Courts can deviate from the guidelines after first determining the guideline amount and making a determination of a need for deviation in order to correct what is perceived as a manifest injustice.

Virginia Code Section 20-108.1 allows for deviation from the guidelines based on the following factors:

1. Actual monetary support for other children or family members;

2. Arrangements regarding custody of children;

3. Imputed income to a party who is voluntarily unemployed or voluntarily underemployed except income may not be imputed to custodial parent when child is not in school, child care services are not available and the cost of such child care services are not included in the calculation;

4. Debts of either party arising during the marriage for the benefit of the child;

5. Debts incurred for the production of income;

6. Direct payments ordered by the court for health care coverage;

7. Extraordinary capital gains;

8. Age, physical and mental condition of the child;

9. Independent financial resources of the child;

10. Standard of living established during the marriage;

11. Earning capacity, obligations and needs, and financial resources of each parent;

12. Education and training of the parties;

13. Contributions (non-monetary and monetary) to the well-being of the family;

14. Provisions with regard to marital property;

15. Tax consequences to the parties regarding claims for dependent children and child care expenses;

16. Written agreement between the parties as to amount of child support;

17. Agreed pendente lite decree; and

18. Other relevant factors.

Child support is owed to any unemancipated child who is a full time high school student who has not reached the age of 19. Support is not awardable beyond the child’s 18th birthday or high school graduation, whichever is later. Further, parents cannot be forced to pay for college expenses unless agreed to in writing by the parties.


FAQ-Driving Under the Influence

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What is Driving Under the Influence?

Driving Under the Influence (“DUI”) is the most frequently charged crime in the world. Although originally designed as a crime to protect the public, its political aspects have led to increasingly harsh enforcement and constant lowering of thresholds to determine what is “under the influence.” It is the only crime where a defendant can be compelled to provide evidence against himself in the form of a breath test, that despite known irregularity, is given an inference of accuracy. As an aside, state and local governments also derive considerable revenue from DUI convictions. Because of their highly politicized nature, many attorneys do not pursue a litigation defense to DUI charges and only seek to reach a plea agreement with the government. The Westlake Legal Group refutes such an approach and strictly holds the government to its burden of proof.

The criminal offense of DUI is brought pursuant to Virginia Code Section 18.2-266. The Commonwealth must prove beyond a reasonable doubt one of four allegations: (1) the defendant operated a vehicle while the defendant’s blood alcohol content (BAC) was .08 or greater; (2) the defendant operated a motor vehicle while under the influence of alcohol; (3) the defendant operated a motor vehicle while under the influence of narcotics or illegal drugs; (4) the defendant operated a motor vehicle while under the influence of a combination of alcohol and narcotics or illegal drugs. DUI is a Class 1 misdemeanor crime for a first offense, and can be a felony if one is convicted of three or more such offenses in a ten year period.

What are the penalties for a DUI conviction?

As a class one misdemeanor, the Court may sentence a person found guilty of DUI to a variety of penalties, depending on the number of subsequent offenses and the amount of intoxication:

First Offense

  • Jail of up to 12 months
    • If BAC is .15 or greater, there is a mandatory jail sentence of 5 days
    • If BAC is more than .20, there is a mandatory jail sentence of 10 days
  • Fine between $250 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in the Virginia Alcohol Safety Action Program (“ASAP”) as well as attendance at Victim Impact Panel
  • A loss of license for one year is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (within 5 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 20 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of and additional 10 days
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Second Offense (between 5 and 10 years of First Offense)

  • Jail between 1 month and 12 months, or
    • Mandatory minimum jail term of 10 days
    • If BAC is between .15 and .20, there is a mandatory jail sentence of an additional 10 days.
    • If BAC is more than .20, there is a mandatory jail sentence of an additional 20 days.
  • Fine between $500 and $2500 plus court costs, or
  • A combination of jail time and a fine.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • A loss of license for three years is required.
    • If BAC was .15 or greater, one who is convicted must install an ignition interlock device before being able to get a restricted license.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Third Offense in a 10 year period

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
    • Mandatory jail term of 90 days. (180 day mandatory jail term if all three offenses committed in a 5 year period).
  • Loss of license indefinitely
  • Court fine of $500-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Fourth Offense within 10 years

  • Class 6 Felony classification.
  • Jail of up to 5 years authorized.
  • Mandatory jail term of 12 months.
  • Loss of license indefinitely
  • Court fine of $1,000-$2500 plus court costs.
  • Required probation and participation in ASAP as well as attendance at Victim Impact Panel
  • State may seize vehicle

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history. The loss of license is required, as are the mandatory jail sentences for high BACs.

Offense by Person under Age 21 (BAC of .02-less than .08)

  • Loss of license for six months.
  • Fine of not more than $500 plus court costs.

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history.

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Q: What does a conviction for DUI do to my insurance and license?
A: Points on a driving records are not assessed by the Court. They are assessed by the DMV, and depending or one’s driving record, a conviction for DUI could result in an administrative suspension of one’s license by the DMV. At a minimum, a person convicted of DUI will be assessed (-6) points on their driving record by the DMV. Such a conviction will remain on the driving record and can be considered when determining insurance rates for a period of 11 years after conviction. A 2004 study concluded that a DUI conviction costs up to $20,000 over the life of a convicted defendant in the form of increased insurance premiums and other fees.

The criminal offense of DUI is brought pursuant to Virginia Code Section 18.2-266. The Commonwealth must prove beyond a reasonable doubt one of four allegations: (1) the defendant operated a vehicle while the defendant’s blood alcohol content (BAC) was .08 or greater; (2) the defendant operated a motor vehicle while under the influence of alcohol; (3) the defendant operated a motor vehicle while under the influence of narcotics or illegal drugs; (4) the defendant operated a motor vehicle while under the influence of a combination of alcohol and narcotics or illegal drugs. DUI is a Class 1 misdemeanor crime for a first offense, and can be a felony if one is convicted of three or more such offenses in a ten year period.

What can I expect from the Westlake Legal Group?

As part of your defense, attorneys at the Westlake Legal Group will fully examine all aspects of your arrest and the charges. There is no cookie-cutter approach to a criminal defense as each case is different. At a minimum, representation should involve:

  • A review of the circumstances of your arrest, to include talking to all available witnesses
  • Determination of the availability of pre-trial motions and discovery requests
  • Legal research for applicable standards and controlling legal authority.
  • Engineering a plan of action to include determining options and consequences of making those decisions.
  • Representation at trial and discussion of plea options, if any, presented by the Commonwealth Attorney.
  • Properly preserving a record in the event appeal is necessary.
Why is it important to be represented by an attorney?

Driving under the influence is a crime. It is not a traffic offense. There is a significant difference between having a traffic record and being a convicted criminal. Such a conviction can effect employment. If convicted, your license will be suspended for one year and you may not receive a restricted license. Not only is employment effected, but the daily activities of family life are compromised. Unfortunately, the law has evolved where the average citizen cannot risk representing themselves. The government does not care about your personal situation and has unlimited resources available to prosecute any case it chooses. You need an attorney with actual, successful trial experience. One that will not just strike a deal with the government; but, one that will properly assess your case and plan, with you, its outcome. A Westlake Legal Group attorney is what you need.

What does such a defense cost?

In driving under the influence, and other criminal matters, the Westlake Legal Group determines the fee at the time of being retained, based on the nature of the charge and the associated extenuating circumstances. Fees also vary depending on the type of defense selected, such as whether one should seek a jury trial or a bench trial. Usually, criminal defense fees are a flat fee. Westlake Legal Group accepts cash, checks, and all major credit cards.

Westlake Legal Group is your neighborhood law firm, serving all your legal needs. Contact us for assistance with your criminal defense, traffic offense, injury, contract dispute, business issue, real estate issue, or family law matter. We look forward to helping you resolve your problems.


Reckless Driving

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What is Reckless Driving?

There are 15 statutes than can charge the criminal offense of reckless driving. The two most common are: (1) a general charge of reckless driving brought pursuant to Virginia Code Section 46.2-852; and (2) reckless driving by speed brought pursuant to Virginia Code Section 46.2-862, which classifies all speeding in excess of 20 m.p.h. above the speed limit, or driving in excess of 80 m.p.h., as reckless driving per se. Reckless driving is a Class 1 misdemeanor crime.

To prove the general charge of Reckless Driving under Section 46.2-852, the Commonwealth must establish beyond a reasonable doubt that the defendant drove a vehicle on any highway or at speed or manner so as to endanger the life, limb, or property of any person.

What are the penalties for a Reckless Driving conviction?

As a class one misdemeanor, the Court may sentence a person found guilty of reckless driving to:

  • Jail of up to 12 months, or
  • Fine of up to $2500 plus court costs, or
  • A combination of jail time and a fine
  • A loss of license of up to 6 months may also be imposed

Whether the Court will impose some or all of the above penalties depends on the facts of each case and the person’s driving history.

To prove the general charge of Reckless Driving under Section 46.2-852, the Commonwealth must establish beyond a reasonable doubt that the defendant drove a vehicle on any highway or at speed or manner so as to endanger the life, limb, or property of any person.

What does a conviction for reckless driving do to my insurance and license?

Points on a driving records are not assessed by the Court. They are assessed by the DMV, and depending or one’s driving record, a conviction for reckless driving could result in an administrative suspension of one’s license by the DMV. At a minimum, a person convicted of reckless driving will be assessed (-6) points on their driving record by the DMV. Such a conviction will remain on the driving record and can be considered when determining insurance rates for a period of 11 years after conviction.

Why is it important to be represented by an attorney?

Reckless driving is a crime. It is not a traffic offense. There is a significant difference between having a traffic record and being a convicted criminal. Such a conviction can effect employment. If a license is suspended, not only is employment effected, but the daily activities of family life are compromised. Unfortunately, the law has evolved where the average citizen cannot risk representing themselves. The government does not care about your personal situation and has unlimited resources available to prosecute any case it chooses. You need an attorney with actual, successful trial experience. One that will not just strike a deal with the government; but, one that will properly assess your case and plan, with you, its outcome. A Westlake Legal Group attorney is what you need.

What can I expect from the Westlake Legal Group?

As part of your defense, attorneys at the Westlake Legal Group will fully examine all aspects of your arrest and the charges. There is no cookie-cutter approach to a criminal defense as each case is different. At a minimum, representation should involve:

  • A review of the circumstances of your arrest, to include talking to all available witnesses
  • Determination of the availability of pre-trial motions and discovery requests
  • Legal research for applicable standards and controlling legal authority.
  • Engineering a plan of action to include determining options and consequences of making those decisions.
  • Representation at trial and discussion of plea options, if any, presented by the Commonwealth Attorney.
  • Properly preserving a record in the event appeal is necessary.
What does such a defense cost?

In reckless driving, and other criminal matters, the Westlake Legal Group determines the fee at the time of being retained, based on the nature of the charge and the associated extenuating circumstances. Fees also vary depending on the type of defense selected, such as whether one should seek a jury trial or a bench trial. Usually, criminal defense fees are a flat fee. Westlake Legal Group accepts cash, checks, and all major credit cards.

Westlake Legal Group is your neighborhood law firm, serving all your legal needs. Contact us for assistance with your criminal defense, traffic offense, injury, contract dispute, business issue, real estate issue, or family law matter. We look forward to helping you resolve your problems.

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