The Livesay & Myers Blog
A key step in every contested divorce case in Virginia is the pendente lite hearing, where the court puts in place a number of ground rules to govern the parties until the divorce is final. “Pendente lite” is a Latin term which essentially means “pending the litigation” or in this context, “pending the final divorce.” In many cases these pendente lite ground rules include an order for temporary child and spousal support.
Each county has their own set of procedures regarding these hearings. For example, pendente lite hearings in Fairfax follow a very rigid structure, including a strictly-enforced 30 minute time limit. Stafford County also follows a schedule with most all hearings being 30 minutes, but Stafford is unique in its near universal drive to have parties attempt mediation before their temporary hearings.
The Virginia Code authorizes courts to refer any contested civil matter (such as a divorce … Read More »
If you have a child custody or visitation dispute on your hands, you’ll want to be aware of what elements the court will consider in making a determination. Contrary to popular belief, courts no longer have legal justification to favor the mother over the father. Instead, Virginia Code Section 20-124.3 provides a list of factors that courts must weigh before ruling on what custody and visitation arrangement is in the best interests of a child.
From my experience, these are the six most important factors considered by Virginia courts in deciding custody and visitation cases:
The Status Quo. The power of the status quo can’t be overstated. If one party stays in the marital home with the children, they will start with a leg up. They can argue that the children are comfortable in a familiar environment, with established neighborhood friends nearby and … Read More »
Signed into law by President Bush in 2003, the Servicemembers Civil Relief Act (SCRA) both replaced and expanded the similarly-focused Soldiers and Sailors Civil Relief Act (SSCRA), which was originally passed in 1918. The purpose of the SCRA is to allow servicemembers to “devote their entire energy to the defense needs of the Nation.” As such, the SCRA provides legal protections to active duty members of the United States military when they are involved in lawsuits that affect their rights. This applies to all types of litigation, including divorce and child custody lawsuits. If you are a member of the military on active duty, the SCRA can assist you greatly. However, if you are involved in litigation against an active duty member of the military, the SCRA can place many additional hurdles in your path. Here’s how:
How the SCRA Can … Read More »
Searches executed using trained canines are another special wrinkle in the general rule of the Fourth Amendment prohibition on warrantless searches. Canine searches do not, generally speaking, require a warrant. Why? Because when Fido takes a whiff, the law says that action is not really a “search” in the constitutional sense. Without a search, there is no violation of the Fourth Amendment. Why are sniffs not considered searches? And when can that wafting scent of contraband be used against you? Let’s explore these issues.
Why Dogs Are Different: a Sniff is Not a Search
Why is a dog sniff not a search?
A narcotics dog is trained to detect one thing: the presence of narcotics. (While dogs are trained for other purposes, like bomb-detection or agricultural purposes, one dog is not usually trained as an “all-purpose” dog, but for one of these specific … Read More »
Justice is supposed to require that a person not be convicted of a crime unless and until the prosecution has proven each and every element of a criminal offense beyond a reasonable doubt. However, proof beyond a reasonable doubt does not require “black and white” evidence of guilt. The law does not necessarily or always require scientific evidence for a defendant to be convicted of a crime. The law does not always require that a crime be timely reported by an alleged victim so that an adequate investigation can be done by law enforcement before a defendant can be convicted of a crime. Nor does the law always require that an alleged victim’s version of the crime even make sense in terms of normal human experience.
The law does, however, allow a jury to determine the credibility of witnesses and make … Read More »
After learning of an increase in L-1 visa denials at this summer’s annual AILA Conference, our office began to see just how extensive these denials have become. As a reminder, an L-1 visa can be used by a U.S. company to bring foreign workers from an overseas branch, parent company, subsidiary, or affiliate. L-1 visas are divided into two categories: 1) L-1A Intracompany Transferee Executive or Manager and 2) L-1B Intracompany Transferee Specialized Knowledge. A brief summary of both types is provided below as well as some of the current issues with L-1B visas, in particular.
L-1A Visa – General Description
This visa allows a U.S. employer to transfer an executive or manager from an affiliated foreign office to work in the U.S. It can also be used by a foreign company to send an executive or manager to the U.S. to … Read More »
The Virginia Sentencing Guidelines provide circuit court judges with a range of recommended sentencing options for many criminal offenses in Virginia. If a defendant’s offense is not covered by the guidelines, then the defendant faces a sentence somewhere within the broad statutory range of punishments for the crime. However, for cases where the offense is covered by the Guidelines, the circuit court will at least review and consider sentencing guidelines worksheets before imposing a punishment.
The purpose of the Virginia Sentencing Guidelines, as created by the Virginia Sentencing Commission, is to provide courts with statistical data in the form of worksheets so that a point based formula (taking into account the nature of the crime, a defendant’s prior criminal history, factors about the crime itself and the defendant’s background to include mental health treatment) will lead to similarly situated defendants being … Read More »
The Fourth Amendment protects us from unreasonable searches and seizures conducted by law enforcement. While searches conducted without a warrant are presumed to be unreasonable, there are several well-recognized exceptions to this rule, particularly when the place being searched is an automobile. Automobiles create different kinds of circumstances because of their mobile nature and the lesser degree of privacy an occupant of a vehicle enjoys.
One of the automobile-related exceptions to the search warrant requirement is the community caretaking exception. The community caretaker exception to the Fourth Amendment is an example of a situation where we acknowledge that police officers serve multiple functions within our community, and that they also have obligations to us outside of arrests and investigations. This exception allows law enforcement to conduct warrantless “inventory searches” of vehicles under certain conditions.
What Are Inventory Searches?
Inventory searches are triggered by the impoundment … Read More »
In 2013, instant interpersonal contact no longer means face-to-face or telephone contact with another person. Text messaging and social media have made nonpersonal instant communications commonplace. I confess, I have sent a message to my wife through a text or via social media while she was in another room in our house. But the modern prevalence of this technology also makes fraud easier than ever before. You may not know what the terms “catfishing” and “spoofing” are, but the chances are high that you’ve heard of Manti T’eo and his “fake girlfriend.” We often mock those who are fooled by people using fake Facebook or Twitter accounts and falsified e-mail addresses, and we shake our heads in disdain at those perpetrating the fraud—but we often place these things in the category of prank, rather than crime. At the end of … Read More »
As the summer begins to wind down, parents and children across Virginia are already beginning to prepare for the upcoming school year. For fortunate families this simply means buying school supplies and school clothes. But for some Virginia children, the new school year means a new home, away from their parents, living temporarily with an adult relative. Under a new law that went into effect this year in Virginia, those children can now more easily attend public school at their new homes.
Section 22.1-3 of the Virginia Code provides that public schools in each school division are to be free to school aged children who reside within the division. Prior to July 1, 2013, a child was said to reside in a division for these purposes only if:
The child lived with a parent (natural or adoptive) in the school division;
The child was from a military … Read More »