Addressing Frequently Asked Legal Questions And Concerns
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How do I get divorced?
In Virginia, divorces are handled in the Circuit Courts, which, by their nature are not set up very well for people to represent themselves (what we refer to as “pro se” parties). This is because there are very specific statutes that control divorces and they can be quite complicated. Each particular locality (what we refer to as “venue”) handles the actual procedure regarding divorces differently. All Courts must follow the Code of Virginia as to the substance of divorce cases, but they are free to adopt their own procedures on handling cases brought in their courts and they vary greatly.
In every Circuit Court, the process is started with filing a legal document called a “Complaint,” which outlines the specific facts necessary to allege to seek a divorce. Unlike in Juvenile and Domestic Relations Court, where most post-divorce matters and matters involving unmarried parents are held, Circuit Court is not form-driven, meaning that you have to create your own filings. Because of the complexities of Circuit Court and divorces in general, I always advise those seeking a divorce to hire competent counsel to ensure your rights are fully protected and to ensure your divorce is finalized properly.
Where do I file for custody/visitation?
Unless the custody/visitation dispute is part of a divorce, you will most likely file in the Juvenile & Domestic Relations District Court of the city where the child has resided for the last six months.
What is a Guardian ad Litem?
A Guardian ad Litem (often referred to as a “GAL”) is an attorney that is appointed by the Court to represent the interests of the children. GALs must be qualified by the Commonwealth. If you are in Juvenile and Domestic Relations District Court, their fees are regulated by the Commonwealth (in Circuit Court, GALs fees are not so capped). A GAL is to, in essence, be the “eyes and ears” of the Court. He/she investigates the matter, speaks to the parties, the children, and all relevant persons to come to an opinion as to what is in the children’s best interest. The GAL then makes a report to the Court of his/her findings, which Courts usually give great weight. A useful reference is the Standards to Govern the Performance of Guardians ad Litem for Children, ordered to be drafted by the Supreme Court of Virginia.
What is DCSE?
“DCSE” is the Department of Child Support Enforcement. It is an arm of Virginia’s Department of Social Services tasked with enforcing child support. It can be involved in a case either by a request by a parent for child support (administrative orders) or be involved through the Court to assist the person seeking support. Often times payment of support is ordered by a Court through DCSE (who then administratively collects and monitors support).
A party seeking support does not have to use DCSE if they choose to proceed with a private attorney or on their own (or after a case is concluded they prefer to be paid directly).
How long does my child get child support?
Absent an agreement between the parties to pay for a longer period of time, child support will continue to be paid for any child over the age of 18 who is (i) a full-time high school student, (ii) not self-supporting, and (iii) living in the home of the party seeking or receiving child support until such child reaches the age of 19 or graduates from high school, whichever first occurs. The court may also order the continuation of support for any child over the age of 18 who is (i) severely and permanently mentally or physically disabled, (ii) unable to live independently and support himself, and (iii) resides in the home of the parent seeking or receiving child support.
I’ve been in a car accident, what do I do?
The first thing you should do when in an accident is to make sure you are physically O.K. The best rule of thumb is “better safe than sorry.” If you are in pain, address it immediately. Unfortunately, because legal action is often necessary to address the damage caused by an auto accident, everything you do or say after an accident may be relevant to your case. So, there are a few tips to remember beyond getting the medical attention you need at the scene should it be necessary:
- Do not discuss the accident with anyone at the scene other than a police officer. This is important because sometimes you might believe you were at fault (or partially at fault) and you may not be. If you say something at the time that indicates that you were at fault, this may be held against you later (and, again, the accident might not have been your fault at all).
- Take pictures of the cars and the scene. Most people have cameras on the phones and the best evidence of the condition of the cars or the scene of the accident is at the time of the accident.
- Do not talk to the other driver’s insurance company. They will most likely contact you and ask for you to give them a statement, you do not have to do so. Politely decline. The other driver’s insurance company will be seeking any information it can to minimize the payout and you might say something that hurts your case without realizing it. The best course of action is to decline and indicate that you plan on hiring an attorney. Once you hire counsel, the insurance company will deal with us, not you.
- Make sure you are 100% healthy after the accident. Even if you did not feel immediate pain at the scene of the accident, you might have been injured. People often hear of Whiplash, which is a layman’s term for Cervical Acceleration-Deceleration. The pain from this can become evident the day after (or even later) an accident. If you have any health concerns following an accident, be sure to see a doctor about it.
- If you are injured, call an attorney. Back to the principle “better safe than sorry,” it is always best to get professional advice as to whether it makes sense to hire counsel for an accident. Sometimes you do not need one because of the minor nature of your injuries, but often times having an attorney on your side allows for you to recover more money to compensate you for an accident which is not your fault.
I've been hurt in an accident, what can I recover?
Under Virginia Law, you are entitled to receive “full and fair compensation” for any damages suffered due to someone else’s negligence. This would include compensation for any injuries, the pain, and suffering due to those injuries, any permanent damage (such as scarring), medical expenses, property damage, and lost income.
A consultation with an attorney is the best way to proceed. Other than for very minor accidents, a lawyer can assist you in maximizing your recovery. Sometimes a lawsuit is necessary for the other driver’s insurance company to pay what it should, sometimes settlement can be made before a lawsuit is even filed; however, a competent personal injury attorney can help you navigate through the process and recover what you deserve.
If I hire you as my attorney for my car accident, how much does it cost?
Personal Injury matters are handled on a contingency basis. We charge 33 1/3% of any recovery if resolved 30 days before trial, after that time the fee shifts to 40%. This fee represents the large amount of time it takes to finish preparing for trial and actually trying the case in Court. We do not recover a fee for your case if the case does not settle or we do not prevail in Court.
While there is no fee for an unsuccessful case, Virginia law requires clients to be responsible for the costs involved in their cases regardless of the outcome. What this means is that the costs associated with your case, such as fees for medical records, filing fees, expert witness fees, court reporting fees and the like must ultimately be paid by you. When we take you as a client, we advance these fees pending the conclusion of the matter. We do not charge you interest on those advanced fees. If the matter is successful, they are taken out of the settlement or paid judgment. If the case is not successful, we work with you to pay off whatever costs have been accrued. As with all things involving your case, we go over the details with you every step of the way.
If my accident case goes to trial, how does that work?
If your matter involves damages that are less than $25,000, the lawsuit may be filed in the local General District Court (“GDC”), otherwise it will be in Circuit Court (“CC”).
A GDC case is faster than CC. It begins by filing a form and paying a small fee. The trial will be before a judge (no juries) and there are limited procedures for exchanging documents and gathering information. A trial is usually within 2-3 months of filing. The costs and fees with trying a case in GDC are usually a lot less than CC. At the end of the case, if either party is unhappy with the result, they can appeal to the CC and have another trial (what is referred to as de novo, which just means it will be a new case without reference to what happened in GDC).
A CC matter starts with a drafted lawsuit. In Tidewater, these cases are scheduled within a year of filing. The actual trial can be delayed for various reasons, however. You have the right to a jury for this level of court, which we always request. There are more methods for obtaining information (what we call discovery) and also more procedures which need to be followed (scheduling orders, formal motions before the court, jury instructions, etc…). This level of Court is much more complex, but it is also the place where the more serious cases are heard.