The Livesay & Myers Blog

Three Questions You Should Ask Before Hiring a Family Lawyer

Posted on October 15th, 2013, by Matthew Smith in Custody, Divorce, Family Law. No Comments

The choice of a family law attorney is always very personal. Given the subject matter, you’ll want to work with someone you can trust, who is nonjudgmental and willing to listen and learn about your circumstances. Considering what may be at stake, your choice of lawyer should be experienced, hard-working and committed, but also willing to find ways to save you money and help you move on as soon as is practical. From my experience, here are three questions that every potential client should have answered before making a significant financial commitment to a custody or divorce attorney:

Will you work as hard to settle my case as you will to try it? At first, this may seem unusual. Working hard to settle means caving in, right? Doesn’t extending an olive branch equate to surrender? Far from it. Contrary to popular … Read More »

Can Pre-Marital Conduct Be a Ground for Divorce in Virginia?

Posted on October 14th, 2013, by Benjamin Carafiol in Divorce. No Comments

In a case recently reviewed by the Virginia Court of Appeals, a wife sought appeal of her divorce case because the judge refused to grant a fault-based divorce on the ground of pre-marital cruelty. The trial court in her case instead entered the divorce based on the parties’ living separately, and the Court of Appeals decided there was no error in so doing. In Virginia, if more than one ground for divorce exists, the trial judge has discretion to enter the divorce on any applicable ground. The Court of Appeals, relying on this rule, held that even if the wife had proved pre-marital cruelty, the trial judge acted properly in choosing to grant the divorce on the no-fault ground of the parties’ separation.

In the course of reaching its decision, the Court of Appeals “assum[ed] without deciding” that pre-marital cruelty is a valid ground for divorce in … Read More »

Can A Separation Agreement Terminate Parental Rights In Virginia?

Posted on October 7th, 2013, by Stephanie Sauer in Family Law. No Comments

A frequently asked question in Virginia divorce cases is whether one party may relinquish his or her parental rights in exchange for a termination of that party’s child support obligation. Can the parties include such a provision in a separation agreement?

This question was recently answered, quite definitively, in Layne v. Layne, 61 Va. App. 32, 733 SE2d 139 (10/23/2012).

Layne v. Layne involved a married couple with one child. The parties separated and later reached a separation agreement, which included the following provisions:

Child Custody and Visitation: Mother agrees that she has and does hereby relinquishes [sic] her parental rights and any and all claims of parenthood to the child.

Child Support: Father hereby waives the right to any claim of child support.

The separation agreement was approved and incorporated into a Final Decree of Divorce of the parties. Then, … Read More »

Federal Government Shutdown Impacts Immigration System

Posted on October 2nd, 2013, by Jennifer Varughese in Immigration Law. No Comments

Whether it lasts for a few days or several weeks, the federal government shutdown is already having an immediate impact on the U.S. immigration system. Here is a summary of the most recent updates from various immigration agencies and departments:

Department of Homeland Security.

Immigration and Customs Enforcement (ICE) – detention and enforcement will continue.

U.S. Citizenship and Immigration Services (USCIS) – all offices are open, so green card, naturalization, asylum, and all other interviews will continue as scheduled.

Executive Office for Immigration Review (EOIR – Immigration Courts). Locally, the Arlington and Baltimore immigration courts are open but operations are limited. At this time, the courts are only hearing cases of individuals who have been detained.

Department of State. Embassies and consulates worldwide will continue to operate until their operating funds are depleted. This could result in … Read More »

How Will That Down Payment Be Treated in Your Virginia Divorce?

Posted on September 30th, 2013, by James Livesay in Divorce, Family Law. No Comments

It is a common story. You get married. You and your new husband or wife buy a beautiful new home. Everything is grand.

But then everything, gradually, over time, becomes… less grand, downright miserable, in fact. You separate. You contemplate divorce. You visit an attorney.

The question arises: what happens to the money that you (or your spouse) used to make the down payment? What happens to that money when you divorce?

There is a general rule that applies to this scenario under Virginia law. Just as background, real estate, when purchased during the marriage, is, by default under Virginia law, marital property regardless of how the real estate is titled. That is, the real estate can be titled in both of your names or solely or in the name of one party. It makes no difference to the question of whether or … Read More »

You Don’t Say! Three Limited Hearsay Rule Exceptions In Criminal Cases

Posted on September 27th, 2013, by Anna Lindemann in Criminal Defense. No Comments

Many criminal defendants discover one thing in their first few meetings with their defense attorney: a very wide gap between the evidence the defendant wants the court to consider and the evidence the court will actually find admissible.  In Hearsay in Family Law, Livesay & Myers divorce attorney Ariel Baniowski tackled one of the most commonly misunderstood areas of evidentiary law: hearsay. Ariel explained what hearsay is and what the rule against hearsay prohibits, and specifically how the hearsay rule comes into play within the realm of family law. In this article, I will explore the hearsay rule as it relates to criminal law.

As Ariel explained, hearsay is an out of court statement being offered in court to prove the truth of the matter asserted. Example: John is testifying. John says “Suzy told me yesterday that she hates the color blue.” … Read More »

Deferred Disposition in Virginia

Posted on September 24th, 2013, by Benjamin Griffitts in Criminal Defense. No Comments

For a small number of specific offenses, Virginia law allows a person accused of committing a first violation to avoid trial and receive a dismissal of the charge—with something called a “deferred disposition.”

In a deferred disposition of a criminal charge in Virginia, several things happen: (a) the judge takes a plea (which can be guilty, not guilty or no contest); (b) the judge determines that the facts would be sufficient for a finding of guilt; (c) the judge, with the agreement of the defendant, withholds an actual finding of guilt for some set length of time; (d) the defendant is placed on some form of probation to complete some terms and conditions; and (e) if the conditions are satisfied, the judge will dismiss the charge at some future date.

Offenses eligible for deferred disposition in Virginia include the most commonly known “first offender” programs, such as:

Underage … Read More »

Hearsay In Family Law

Posted on September 23rd, 2013, by Ariel Baniowski in Custody, Divorce, Family Law. No Comments

When preparing a client or witnesses for a hearing or a trial, I always find myself repeating one thing over and over – the hearsay rule! What is hearsay? Why is hearsay evidence inadmissible? Are there exceptions?

Without writing a dissertation, I will try to sum a few things up about the hearsay rule as it relates to custody, divorce and other family law cases in Virginia.

What is Hearsay?

The Supreme Court defines hearsay as “testimony given by a witness who relates, not what he knows personally, but what others have told him, or what he has heard said by others.” Cross v. Commonwealth, 195 Va. 62, 74, 77 S.E.2d 447, 453 (1953). Note that hearsay is not limited to oral statements. Hearsay includes conduct, gestures, writings, and even silence in some cases. Further note that in order for a statement to … Read More »

What Does It Mean To Dissipate Or Waste Marital Assets?

Posted on September 19th, 2013, by Julia Jones in Divorce, Family Law. No Comments

If you are involved in a contested divorce in the Commonwealth of Virginia, the court will eventually set a date for an equitable distribution trial. At that trial, you and your spouse will have the opportunity to present proposals to the court for distribution of the marital property and debts. Occasionally, one party in an equitable distribution hearing will allege that the other has misused or deliberately disposed of marital property to purposefully deprive the other party of his or her share. This behavior is commonly known as “marital waste” or “dissipation of assets,” and the court has authority to consider such behavior in making an equitable distribution award.

But how does the court know when marital waste was purposeful?  The general rule in Virginia, stated in Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569 (1988), is that “waste may be … Read More »

What Happens If You Are Detained By Immigration?

Posted on September 18th, 2013, by Susannah Nichols in Immigration Law. No Comments

If you or someone you love has been detained by Immigration officials you likely have many questions about the process. Non-citizens may be detained for violations of immigration law. Commonly these include: overstaying or violating a visa, entering the country illegally, or criminal convictions.

The detention process begins with Immigration and Customs Enforcement (“ICE”) finding that you have violated an immigration law. You will then be picked up by ICE officers and taken to a local facility to process. In the Washington, D.C. area, you would go to the ICE office in Fairfax, Virginia. There, you will be formally processed and ICE will decide if they are going to release you on bond (a legal agreement where money is paid and held by the government to ensure that you will attend future hearings), release you with a monitoring system, or transfer … Read More »

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