The Livesay & Myers Blog


Committee Proposes New Criminal Discovery Rules for Virginia

Posted on March 27th, 2015, by Benjamin Griffitts in Criminal Defense. No Comments

Way, way back in 2012, I wrote My Cousin Vinny and Discovery in Virginia Criminal Cases, which explained the rules for discovery of evidence in Virginia criminal cases.

It appears that those discovery rules are very likely to change. Earlier this month, the Virginia Supreme Court released a report by its “special committee on criminal discovery rules.” Chaired by retired Loudoun County Circuit Court Judge Thomas D. Horne, this committee spent the bulk of 2014 looking at the existing Rules of Discovery and determining whether any changes to them should be proposed. The committee delivered its report to the Supreme Court on December 2, 2014.

In its report, the committee proposed several new rules that, if adopted, would dramatically affect the nature of criminal practice in the Commonwealth of Virginia. It is important to keep in mind that these are recommendations only, not updated law. … Read More »


Is the Increase in Value of Investments Marital Property in Virginia?

Posted on March 26th, 2015, by Caitlyn Stubbs in Divorce, Family Law. No Comments

In Virginia divorce actions, one of the first questions parties often ask is “who is going to get to keep what?”

Virginia is an equitable distribution state, meaning that the court has the authority in any divorce to classify the property of the parties as separate, marital or hybrid. This classification is vitally important, because the court only has the power to divide marital and hybrid property—not any separate property.

In Equitable Distribution: Using Separate Property For A Marital Loan, Livesay & Myers, P.C. associate Danielle Snead explained the Virginia Court of Appeals decision rendered in Layman v. Layman and the impact on property classification when a party uses separate property throughout a marriage.

The Court of Appeals in David v. David, Va. App., Record No. 0653-12-2 (2015) recently highlighted another potential pitfall on the road to proving separate property is actually separate. The David case illustrates … Read More »


Can a Third-Party Seek Custody or Visitation of a Child in Virginia?

Posted on March 24th, 2015, by Anneshia Miller Grant in Custody, Family Law. No Comments

In Virginia, a petition for custody or visitation may be filed by either parent or by any “person with a legitimate interest.” Virginia law defines a person with a legitimate interest broadly to include grandparents, stepparents, former stepparents, blood relatives and family members such as aunts, uncles or adult siblings. Once the court finds that a person seeking custody or visitation qualifies under this definition, then it will consider the best interests of the child in determining whether custody or visitation should be granted, and making any other rulings pertaining to the petition before it.

Any person who has had his or her parental rights terminated by a court, or who seeks access to a child for another who has had his or her rights terminated, voluntarily, involuntarily or by adoption, may not be considered a person with a legitimate interest—regardless of … Read More »


Military Divorce Rate Reaches Lowest Point in 10 Years

Posted on March 5th, 2015, by Matthew Smith in Family Law, Military Divorce. No Comments

According to statistics released on Wednesday by the U.S. Department of Defense, the military’s divorce rate dropped again last year, and has reached its lowest level since 2005.

In 2014, the divorce rate among enlisted and officer men and women was 3.1 percent. The military divorce rate has steadily decreased since 2011, when it reached a high of 3.7 percent. In 2001, when the wars in Iraq and Afghanistan were beginning, the rate was only 2.6 percent.

By contrast, the civilian divorce rate stands at approximately 3.6 percent, according to the most current data available.

One gender is largely responsible for the steady decline in military divorces. Since 2011, the female military divorce rate has dropped from 8.0 percent to 6.5 percent, accounting for most of the overall reduction. Female Marines saw the largest decrease in divorces, from 9.5 percent in 2011 to … Read More »


How Will Divorce Affect Your Immigration Status?

Posted on March 4th, 2015, by Susannah Nichols in Divorce, Immigration Law. No Comments

Going through a divorce can be stressful enough without the added element of marriage-based immigration issues. While all your time and energy may be focused on terminating your marriage, you cannot neglect how this change in your relationship may or may not affect your ability to remain in the United States after your divorce. Here are answers to ten questions which commonly arise when divorce and immigration intersect:

Will separation from my spouse affect my immigration benefits? Generally, no. Physical or legal (court-ordered) separation from your spouse does not constitute a termination of your marriage and will not affect your immigration status. In some states, an extended legal separation may convert into a divorce after a period of time. In these instances, your immigration status would be terminated if it is dependent upon your marriage.
Will my divorce affect my non-immigrant status? If your … Read More »


Is There Any Advantage to Filing First?

Posted on February 23rd, 2015, by Ariel Baniowski in Custody, Divorce, Family Law. No Comments

Family law attorneys are constantly asked what, if any, advantage there is to filing first. Whether it is for divorce, custody or support, the answer is both “yes, there is an advantage” and “no, there is not an advantage.”

The answer is “no,” because your allegations, evidence, and prayers for relief will be reviewed impartially by the court—whether you filed first or not. The judge will not favor either party because of the order of filing.

The answer is “yes” for two main reasons: (1) you get to set the pace for litigation and/or settlement, and (2) you get to speak first and last in the event your case goes to trial.

Setting the Pace

Filing first means having some degree of control over the pace and nature of litigation and/or settlement. Are you hopeful for a settlement, and do you want to demonstrate that to the opposing party? Are you … Read More »


Making the Virginia DCSE Work for You

Posted on February 19th, 2015, by Carolyn Eaton in Family Law. No Comments

You’ve succeeded in getting the court to enter a child support order for your child. It has been a few months and the obligated parent is no longer paying or is not paying the full amount. The child support arrears are growing with every passing month. The Virginia Division of Child Support Enforcement (DCSE) may be able to get the money flowing again. Below are some tools at their disposal, which you may put to work on behalf of you and your child.

Child Support Enforcement Tools

The primary way to enforce a child support order is through wage withholdings. But if non-custodial parents don’t receive a regular paycheck, are self-employed or work for commissions, the DCSE has other enforcement tools at their disposal. Those tools include placing liens on real or personal property, seizing income or financial assets, intercepting state and federal … Read More »


Spousal Support Jurisdiction Over Non-Residents in Virginia

Posted on February 11th, 2015, by Jonathan McHugh in Divorce, Family Law. No Comments

Imagine a married couple separates and one party moves out of the Commonwealth of Virginia, with no intention to return. The spouse who remains in Virginia wants to pursue a divorce. A circuit court in Virginia can divorce the parties, as long as there are grounds for divorce and the proper procedures are followed. But what if the Virginia resident wants to request spousal support?

For the Virginia court to order spousal support in that situation, it must first find that it has personal or “in personam” jurisdiction over the non-resident. There are several ways that a court can have personal jurisdiction, per Virginia Code §8.01-328.1. There are two, however, that are of particular importance to parties going through a divorce.

First we have Virginia Code §8.01-328.1(A)(8), which provides that a court may exercise personal jurisdiction over a person who:

…executed an agreement … Read More »


Don’t Get Carried Away—What You Need to Know About Carrying Firearms in Virginia

Posted on February 9th, 2015, by Eugene Oliver in Criminal Defense. No Comments

For many ordinary citizens, one of the most confusing areas of the law is that surrounding firearms. Particularly of concern is whether one can legally carry a firearm in public and if so, what restrictions are in place. Of double concern is the severity of criminal penalties for non-compliance with these laws and the tenacity with which local and state police enforce firearms laws. It is very easy, even in a gun friendly state such as Virginia, to unknowingly put yourself in a situation with firearms that results in criminal charges.

So to begin, Virginia is what’s known as an “open carry” state. This means that any individual over the age of 18, not otherwise disqualified from possessing a firearm, can carry one in public. Those who are disqualified from possessing a firearm include: convicted felons, juveniles found delinquent of felonies (in … Read More »


Virginia Child and Spousal Support in Military Cases

Posted on February 3rd, 2015, by Anneshia Miller Grant in Family Law, Military Divorce. No Comments

Virginia child or spousal support cases involving military servicemembers present unique and sometimes challenging issues. Servicemembers have a pay structure much different than that of a civilian. Military pay can be any combination of basic pay, benefits, entitlements, allowances, and/or special and incentive pay. With the various types of pay, some taxable, many non-taxable, how does a servicemember know what pay the court will look at to determine spousal or child support? Can the court consider non-taxable pay such as disability pay for spousal support or child support? Are special entitlements such as Post 9-11 GI Bill benefits considered income for purposes of determining support?

Military Pay and Child Support in Virginia

Virginia courts use the same factors in every child support case to determine the amount applicable under the statewide child support guidelines. The court may deviate from “the guidelines amount” … Read More »




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