Published Opinion By Virginia Supreme Court in Livesay & Myers Appeal

The Supreme Court of Virginia has issued a published opinion in the appeal by attorney Ghislaine Storr Burks of a case involving a North Carolina bail bondsman convicted of Attempted Abduction and Use of a Firearm in the Commission of a Felony in Virginia.

Note: less than two percent of cases filed with the Virginia Supreme Court result in the petition for appeal being granted.

Congratulations to Ms. Burks for fighting this case all the way to the Virginia Supreme Court. This author notes the comment by one of the Supreme Court Justices during oral argument that Ms. Burks' brief was very well written.

Ms. Storr Burks is a partner and the lead criminal defense attorney at Livesay & Myers, P.C.

I’m in the Military, or a Military Dependent, and Need a Restricted Driver’s License in Virginia

A Discussion of the Pitfalls & Specifics of the Restricted Driver’s License in Virginia as it applies to servicemembers, their dependents, and the general public.

About the only saving grace following a conviction on a charge of DWI, DUI, drug possession, or high speed reckless driving in Virginia is the opportunity to receive a Restricted Operator’s License so that you can continue to drive for a number of necessary, but limited, purposes.

A Virginia Restricted License allows a person to drive to and from their place of business, even during work under certain verifiable conditions; to and from an educational institution; to and from medical facilities for yourself or someone under your care; to and from school or daycare for your children; to and from court-ordered visitation with children; and to and from court-ordered probation or VASAP. In 2010, the General Assembly even added the ability to drive to a place of religious worship one day per week. You can find the entire list of uses of a Restricted License in Section 18.2-271.1(E) of the Code of Virginia.

If you’ve ever received or seen a Restricted License issued in court, you may know that you surrender your physical Driver’s License, and the Court eventually provides you with a two page green form that lists the conditions under which you are permitted to drive with the Restricted License. It lists a start date, as well as an end date. What it also says, which so many people fail to read, is that no earlier than 30 days after you receive the green form, but no later than 60 days, you must physically go to the DMV and provide them with your green form so that they can issue you a shiny new physical driver’s license.

For the remainder of your Restricted License period, you are supposed to not only have that physical license, but you are supposed to keep the green form also, along with any other verification documents that the Judge may have instructed you to carry such as a work schedule. Violating the terms of the Restricted License is serious business—a Class 1 Misdemeanor that carries possible jail time, and the DMV steps in and suspends your license for a full year with no possibility of a Restricted License!

What happens if you forget to go to the DMV in the first 60 days? Your green form expires, and you have to return to the Court to have a new Restricted License issued.

That’s easy enough—if you’re a Virginia resident. But what happens if you’re from another state? Can Virginia suspend your license? No. Virginia suspends your privilege to drive within the boundaries of our Commonwealth. (You should always refer to a legal professional in the state where your license is issued or check with your local Department of Motor Vehicles to determine whether a suspension in Virginia negatively affects you in your home state).

Or better yet, what if you live in Virginia, but you’re in the military or a military dependent and you aren’t required to obtain a Virginia license? What happens to you when you can’t go to the DMV and get a physical license, but you still need to be able to drive in Virginia for one of those necessary purposes listed in the first paragraph above?

The answer is simple enough, but you would be surprised at how many people are unaware of it. In 2010, in addition to adding religious worship to the Restricted License, the General Assembly gave judges the authority to grant Restricted Licenses to out-of-state drivers whose privilege to drive in Virginia is suspended through Virginia Code Section 46.2-398. You just have to make sure that the judge clearly identifies you as an out-of-state driver on your green form, and the form is good for the entire term of your suspension. This impacts in particular active duty servicemembers or their dependents who for one reason or another wish to keep their driver’s license issued in a state other than Virginia.

Suspension of one's license or privilege to drive in Virginia is supposed to be a punishment—and for those in communities where driving feels as necessary to living as breathing, it is. But don’t panic! A properly applied-for Restricted License can be that lifeline you need to keep that job or stay in school.

The law firm of Livesay & Myers, P.C. has a team of traffic lawyers across offices in Fairfax, Manassas and Fredericksburg, Virginia. If you or a loved one have been charged with a traffic violation, contact us to schedule your free consultation with one of our experienced attorneys today.

Stepparent Adoption in Virginia

Remarrying and starting a new family is an exciting time in most people's lives. Many families have adopted the terms "bonus children" or "bonus parent" to highlight the happiness that comes from an expanding family. Stepparents can and often do take on an important and involved role in children's lives. Sometimes the stepparent is more involved and a better influence than one of the biological parents. In these situations, many parents want to learn about the possibility and likelihood of the stepparent adopting the child.

Stepparent adoption is the most common type of adoption. The process involves multiple steps which can be executed with relative ease depending on the willingness of the biological parent.

The first step in any stepparent adoption is to address the rights of the biological parent. If the parent has been absent from the child's life for an extended period of time, at least six months, then the parent may be willing to consent to the adoption. If that is the case then paperwork can be prepared in which the biological parent relinquishes his or her parental rights in favor of the stepparent adoption. If the biological parent's whereabouts are unknown or the biological parent refuses to consent, then measures must be taken before the court can grant the adoption. If the biological parent's whereabouts are unknown, then notice of the adoption hearing must be given through "publication" in a newspaper.

Our adoption attorneys can quickly and easily process the paperwork necessary to address the rights of the biological parent or for notice by publication.

A biological parent does not have to consent to the adoption, and the objection of the biological parent does not necessarily mean that the adoption cannot be granted. A court can order the adoption without consent of the biological parent if the court finds that (a) the biological parent's consent is unavailable (because he or she did not appear) or (b) the biological parent is withholding consent against the best interests of the child and a continued relationship between the biological parent and child would be detrimental to the child.

If the biological parent objects to the adoption, a hearing is necessary. Typically, the court will require an investigation or homestudy of the parents, the adoptive parent, and the home in which the child resides. The investigation is completed by the Department of Social Services or a private organization approved by the Court. The information obtained in the investigation is used at the hearing to assist the court in determining the best interests of the child.

If a hearing is necessary, the court will consider a number of factors in determining whether to terminate one biological parent's parental rights and allow the child to be adopted by a stepparent. These factors include (1) the efforts of the biological parent to obtain or maintain legal and physical custody of the child, (2) whether the biological parent is currently ready and able to assume custody of the child, (3) whether the biological parent's efforts to assert parental rights were thwarted by other people, (4) the biological parent's ability to care for the child, (5) the age of the child, (6) the quality of any previous relationship between the biological parent and the child, (7) the quality of any relationship between the biological parent and any other children, (8) the duration and suitability of the child's present custodial environment, and (9) the effect of a change of custody on the child.

An adoption trial can be legally complicated and emotionally draining. Having the assistance of an attorney who can review the circumstances of your case, inform you of what facts best highlight your case, and then present those facts in a concise manner to the court, is of paramount importance.

The adoption attorneys at Livesay & Myers, P.C. are experienced with every facet of stepparent adoptions, and represent clients in Fairfax, Manassas, Woodbridge, Prince William County, Stafford, Fredericksburg, Spotsylvania, Alexandria, Arlington, and all of Northern Virginia. Contact us to schedule a consultation today.

Ghislaine Storr Burks Named Partner at Livesay & Myers, P.C.

Congratulations to Ghislaine Storr Burks, who today was officially named a Partner at Livesay & Myers, P.C., just 5 years after joining the firm as an associate attorney in January 2007. With her tireless efforts on behalf of her clients, record of success in defending clients in courts across Northern Virginia, and knowledge of the criminal justice system that is second to none, Ms. Storr Burks is a priceless asset to the firm.

Waiting For the Market to Turn Around: The Dangers of Joint Ownership After Divorce

In any separation, one of the most difficult issues to address is the marital residence. Whether secured by a mortgage or owned free-and-clear, the home typically represents the most valuable asset owned by a couple. In this buyer's market, it can be difficult (if not impossible) to simply sell a house and split the profits. Sometimes, the parties want one parent to stay in the house until their kids finish school to avoid pulling them from their childhood home. In other cases, there simply may be no realistic way to sell the house for a profit. This reality often leads parties to consider continuing jointly owning their house beyond their separation and divorce, whether that is for two, five, or even ten years.

While on its face this approach seems practical, deciding to retain joint ownership over the marital residence after divorce carries significant risks of which neither party may be aware. The source of these risks is the "special" type of joint ownership available to spouses under Virginia law: ownership as "tenants by the entirety," also known as ownership "as husband and wife."

Historically, when a man and wife were married a new legal entity was created. The "married couple" was treated as a single individual that possessed its own rights and obligations. In modern times the belief that a married couple is a separate entity has largely been abandoned. However, in Virginia a married couple may still choose to jointly own property as a single legal entity.

Section 55-20.2 of the Virginia Code grants a husband and wife the special joint ownership rights of tenancy by the entirety. Joint ownership through tenancy by the entirety provides a married couple with some significant advantages, including the automatic transfer of ownership to the other spouse upon death without the need for additional estate planning documents (wills, trusts, etc.). Possibly the greatest benefit deals with creditor rights: the property owned through tenancy by the entirety is completely immune from any creditor of only one spouse. For example, if you owe $10,000 in unpaid medical bills in your name alone, any judgment entered against you individually for those debts cannot be attached to your marital residence if you own it as husband and wife. The only way a judgment can attach to property owned through tenancy by the entirety is if the debt in question is jointly owed to the creditor.

This protection through joint ownership, however, evaporates upon divorce. If you are no longer married you can still jointly own property together, but you cannot jointly own property through tenancy by the entirety. Once your divorce is final, all of your creditors (and, more importantly, all of your former spouse's creditors) can attach judgments to your home. The real danger, however, is this: you will have no control over judgments against your former spouse, and you will have no way of stopping them from attaching to the home. In many cases, you may not even know that a judgment against your former spouse has been entered and attached to the property.

These judgments become a major problem when former spouses get two, five, or ten years down the road and are ready to sell the house because virtually any buyer, lender, or title insurance company will require that all judgments be paid as a condition of sale. In some cases this may simply mean you get less net proceeds from the sale, but in many (if not most) cases this could mean no profits at all. In the worst case scenario, the list of judgments could be so large that you would not be able to sell the house at all!

With careful planning, a skilled attorney can help minimize these dangers, or even help you avoid them altogether. The family lawyers at Livesay & Myers, P.C., are experienced in addressing these issues and any other issues that may arise in your divorce or separation, and represent clients in Fairfax, Manassas, Woodbridge, Prince William County, Stafford, Fredericksburg, Spotsylvania, Alexandria, Arlington, and all of Northern Virginia. Contact us to schedule a consultation today.