The Livesay & Myers, P.C. Blog
Back in July of 2015, the Virginia General Assembly passed a law that aimed to save the lives of people suffering from overdoses. This safe reporting law (Virginia Code § 18.2-251.03) provides for an affirmative defense to prosecution of unlawful possession of alcohol, possession of a controlled substance, possession of marijuana, drunk in public, or possession of controlled paraphernalia. It does not, however, provide an affirmative defense to other crimes such as intent to distribute.
While the law is indeed a constructive step towards lowering the rate of overdoses in Virginia, it has generated some confusion about whom it actually covers. Is the individual overdosing protected? Or is it the person making the call? Or is it both? A recent Virginia Court of Appeals case, Broadous v. Commonwealth, interpreted the overdose safe harbor provision provided in § 18.2-251.03 and may finally … Read More »
In Virginia, there are two types of courts that handle family law cases: juvenile and domestic relations district courts (“J&DR courts”) and circuit courts. Circuit courts have the authority to hear divorce cases and all matters stemming from divorce, including child custody, visitation and support, spousal support and equitable distribution. J&DR courts can hear cases of custody, visitation, child support and spousal support, but have no authority over divorce matters. J&DR courts thus hear many cases involving unmarried individuals who share children—but are not off limits to married persons by any means.
In some instances, married individuals may file petitions for custody, visitation or support in J&DR court, even if they intend to ultimately seek a divorce in circuit court. In many cases, neither individual of the married couple has grounds to file for divorce in Virginia, but still needs a determination … Read More »
Probate is the legal process that includes proving the validity of a decedent’s will, identifying the decedent’s assets and transferring those assets to the decedent’s heirs, beneficiaries and/or creditors. “Probate assets” are assets that pass to your heirs or beneficiaries pursuant to your will. “Non-probate assets” are assets that pass to your heirs or beneficiaries by some means outside of your will, thereby avoiding the probate process that involves qualification of a fiduciary, costs, and delay, as well as other aspects of probating a will.
Some examples of non-probate assets in Virginia are:
Assets with a Named Beneficiary. Life insurance contracts payable to a designated beneficiary, and retirement benefits payable to a designated beneficiary, such as 401(k)s and IRAs, pass directly to the named beneficiary at the death of the policy or account owner, rather than by a will.
Payable on Death (POD) … Read More »
If you do not know the whereabouts of your spouse, it is still possible to proceed with a divorce. Because each party in a divorce must have notice of any claims asserted against them, an absent spouse becomes an issue for purposes of service, which is the process by which parties to a case are provided with notice of the legal proceedings. In these cases, notice can be provided by using “service by publication.” Service by publication is the method of publishing an order, which acts as sufficient notice of the divorce proceedings to the spouse whose location cannot be found.
There are several potential issues with service by publication that you should be aware of if you intend to use this method in your divorce case.
First, service by publication is only to be used when one spouse truly has no … Read More »
For purposes of calculating child support, the Virginia Child Support Guidelines take into account each parent’s gross income. Virginia Code § 20-108.2(C) defines “gross income” as “income from all sources,” including but not limited to:
income from salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits except as listed below, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes or awards.
§ 20-108.2(C) further provides that “[g]ross income shall be subject to deduction of reasonable business expenses for persons with income from self-employment, a partnership, or a closely held business.”
Pursuant to this code section, Virginia courts have consistently deducted expenses associated with rental properties from the rental income on those properties in calculating gross income. Some of the expenses commonly deducted include: mortgage payments, taxes, insurance, … Read More »
Generally, a foreign national applying for a nonimmigrant visa to come to the U.S. must demonstrate that they have “nonimmigrant intent,” meaning the intent to return to their home country at the end of their authorized stay. The burden is on the applicant to demonstrate to the interviewing officer at the consulate or port of entry that they have sufficient ties to their home country that they do not intend to abandon and that will compel them to leave the U.S. at the conclusion of their authorized stay.
The interviewing officer has a great deal of discretion in deciding whether the foreign national has offered sufficient proof of their nonimmigrant intent. It is beneficial for the applicant to have supporting documentation of ongoing ties to their home country, which may include: proof of continuing employment, property ownership, financial assets and family ties. … Read More »
An advance medical directive is a legal document that allows a person to state what they want for their own medical care if they are unable to make decisions for themselves due to incapacity.
In Virginia, advance medical directives are authorized under the Virginia Health Care Decisions Act.
An Advance Medical Directive may be used to:
specify what the person executing the directive (known as the declarant) does or does not authorize with regard to his or her healthcare;
appoint an agent or a third party to make healthcare decisions for the declarant; and
specify anatomical gifts of a specific part or parts of the declarant’s body, or the declarant’s entire body, for organ and tissue donation.
Executing an Advance Medical Directive
Per Virginia Code § 54.1-2983, in order to be a legally binding document an advance medical direct must be signed by the declarant in the … Read More »
People undergoing the process of separation and divorce face many major, life-changing events all at one time. First and foremost in the minds of most parents in this situation is the issue of child custody. The initial question on the minds of many is: “Can I get sole custody of my kids?” While many parents are inclined to seek sole custody of their kids, very few are familiar with what the term “sole custody” actually means, and the difficulty that comes with trying to win sole custody of children in Virginia.
In Virginia, there are two types of custody: legal and physical. Legal custody is the right to make decisions for your children, including major decisions such as healthcare, education, and religious upbringing. Physical custody is where the children live. Visitation is a subset of physical custody, and can be generally … Read More »
It is not uncommon for people undergoing divorce to approach their attorneys with a laundry list of terms regarding their children that they would like included in their separation agreement, or for people who already divorced to approach attorneys with child-related terms of an existing separation agreement which they need enforced. What many people are surprised to hear is that some of those terms which they would like included, or some of the terms that may already be in their agreement, are actually unenforceable under Virginia law.
The first thing to understand in this area is that provisions in agreements regarding child custody, visitation and child support are always modifiable based upon a material change in circumstances. Always! So, any provision in an agreement which indefinitely prohibits the modification of custody, visitation or child support would be unenforceable.
Secondly, there are plenty of … Read More »
If you are an international student enrolled in a full-time degree or academic program at a U.S. educational institution, then you are an F-1 student. As an F-1 student, you are admitted to the U.S. for “duration of status.” This means you are allowed to stay in the U.S. as long as you maintain your status by satisfying the requirements and regulations instituted by U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Custom Enforcement (ICE). The following is a guide to maintaining your F-1 student status or applying for reinstatement if you have fallen out of status:
Maintaining F-1 Status
You can maintain your F-1 student status by following these rules:
Maintain a full-time course load. What constitutes a full-time course load might differ depending on the type of program in which you have enrolled. You should check your program to ensure … Read More »