Misdemeanors Have Major Consequences

May 30, 2014

 

Many people brush off a misdemeanor offense as minor, but the truth is misdemeanor convictions have major consequences.  A misdemeanor is a serious charge that is punishable by jail time.

Usually, individuals convicted of misdemeanors are ordered to pay hefty court fines, that low-income defendants often cannot pay.  The failure to pay the court fines could result in even more jail time, as commented on the recent NPR series.  A conviction can ruin a person’s job prospects.  A conviction may affect the eligibility for professional licenses, child custody, food stamps, student loans, and may lead to deportation.

When someone convicted of a misdemeanor has served his or her time in jail and satisfied all of the other requirements, he or she still has a misdemeanor that follows them around.  This conviction will not simply disappear from your record.  You have to take action to have it removed, and some misdemeanors are not eligible for expungement.

Misdemeanors aren’t reported much in the news, because society focuses on felonies.  However, misdemeanors are much more common than felonies.  In most states, misdemeanor court dockets are four or five times the size of felony dockets.  Due to the sheer volume of misdemeanor charges, defendants often feel pressure to plead guilty, without knowing their rights, or what they can do to fight the charge.

Because of the major consequences a misdemeanor conviction can have on your life and family, you should take them seriously.  Give misdemeanors their due, and contact an attorney to help you understand the options.

 
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Risks of Ignoring Child Support Orders

May 27, 2014

 

Child support is often a tense subject between parents.  However, once a court order is in place, it is imperative that you follow the order and make your payments on time.  Failing to abide by the court order can result in major consequences.

In the District of Columbia, the IV-D agency is established as the Collection and Disbursement Unit for child support payments.  After one parent files a motion for contempt, the Court has many remedies.  Together, the Judge and the Collection and Disbursement Unit can do the following:

Additionally, there are administrative penalties that may be utilized when a parent doesn’t pay child support in D.C.  These include:

In Virginia, there are child support enforcement agencies in every county.  The primary goal of the child support enforcement agencies are to ensure that child support is paid in full.  The agency will first pursue administrative remedies, which include the following:

If the administrative remedies are not effective, the child support agency can petition the Court for enforcement.  The Court may impose these additional penalties:

Due to these harsh consequences of non-payment of child support, it is important to stay current in your payments.  If you experience a financial set back, contact the child support agency to see if an adjustment can be made temporarily.  If there is a significant change in your income, you may also petition the court to change the order permanently.

 
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The Most Expensive Divorce Ever

May 22, 2014

 

A Swiss court ordered Dmitry Rybolovlev to pay $4.5 billion to his wife Elena in their divorce.  Marc Bonnant, attorney for Elena Rybolovlev, stated that it was “the most expensive divorce in history.”

Swiss law requires equal division of money or assets acquired during the marriage.  Dmitry Rybolovlev made most of his money from selling his share of a fertilizer company.  He now owns the French soccer team AS Monaco, and is estimated worth is $8.8 billion according to Forbes magazine.

Lately, he had made several real estate purchases, including a $300 million penthouse in Monaco, a $98 million mansion in Palm Beach, Florida, a $88 million apartment in New York, and the Greek island of Skorpios.

However, the decision is being appealed, and it’s unclear how much money Elena Rybolovlev will be able to collect.  Much of Dmitry Rybolovlev’s money is held in trusts for the couple’s two children, and much of the fortune is held outside Switzerland.

Proof that no one is above the law – at least in divorce cases.

 
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Is An Uncontested Divorce An Option For You?

May 20, 2014

 

If divorce from your spouse is something you are considering, you should look into the concept of an uncontested divorce.  Unlike an adversarial divorce, an uncontested divorce is one where the spouses agree on all the issues arising from the marriage and separation.

In the District of Columbia

First, to obtain a divorce in D.C., either you or your spouse will have to have been a resident for at least six months. D.C. allows for uncontested divorce if you and your spouse agree on how the court should divide property, debt, custody of children, visitation schedule for children, child support, alimony, and any other assets.  You and your spouse should typically enter into a written agreement for all of these issues.

In order to file for divorce, you need to file a Complaint for Divorce, listing your date of marriage, your date of separation, and the assertion that you have a written settlement agreement.  Your spouse should file a Consent Answer, which essentially says he or she agrees with everything you stated in your Complaint for Divorce.  Additionally, both you and your spouse need to fill out the Uncontested Praecipe, which tells the Court you want an uncontested divorce and a hearing date.  If you file all of these documents together, you will be put on the uncontested divorce calendar.

The hearing should be brief, with the Judge asking questions to confirm your identity,  your marriage date, and that you are eligible for an uncontested divorce. The Judge will review your settlement agreement to ensure that it is valid, and then sign an order finalizing your divorce.

In Virginia

First, to obtain a divorce in Virginia, either you or your spouse will have to have been a resident of Virginia for at least six months.  Virginia allows for an uncontested divorce only if neither party asserts cause for divorce (i.e. it has to be a no-fault divorce).  You and your spouse must have a separation or settlement agreement, where you have agreed on all of the issues, including spousal support, custody of children, child support, and division of property.

To start the process for divorce in Virginia, you have to file a Complaint for Divorce.  Then draft a waiver for your spouse to sign, indicating that he or she is not opposing the divorce, and that he or she waives service of the paperwork.  Once your spouse signs the waiver, file it with the Court.  Then you and your spouse need to sign a property settlement agreement, which resolve all of the issues.  Draft a divorce decree and attach your settlement agreement to it.

The court will schedule a “ore tenus” hearing, where you will verbally make your request for a divorce.  You and a witness need to appear to testify about the facts necessary for the Court to grant you a divorce.  If all the requirements for divorce have been met, the Judge will sign the final divorce decree.

Clearly, the process of an uncontested divorce is much quicker than a contested one.  Due to the streamlined process, the parties save time and money.  So if you can work out all of the issues that arose in your marriage, an uncontested divorce is a great option.

 
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Custody Battle: Who Gets the Embryo?

May 18, 2014

 

With the technology of in vitro fertilization, the dreams of many men and women to become parents have come true.  That’s made a lot of families happy.  However, when parents decide to divorce, the situation becomes tricky.  In a custody battle – who gets the embryo?

Just last week, a court in Cook County, Illinois addressed this very issue.  In 2009, because of infertility, Karla Dunston and her boyfriend, Jacob Szafranski agreed to create embryos together that could be frozen for future use.  A written agreement was drafted, giving Ms. Dunston control of the embryos, but it was never signed. After the couple broke up, Mr. Szafranski changed his mind, and litigation eventually ensued.  The Cook County Judge ruled that Ms. Dunston has custody of the frozen embryos. The Court explained that “Karla’s desire to have a biological child in the face of the impossibility of having one without using the embryos outweighs Jacob’s privacy concerns, which are now moot.”  Mr. Szafranski plans to appeal the decision.

There have been very few higher court cases addressing this complex situation.

Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), was the first court to address this issue in 1992. In that case, the husband wanted to destroy the embryos, but the wife wanted to donate them to another couple.  The Tennessee Supreme Court ultimately ruled that the husband’s interest in avoiding parenthood was more significant than the wife’s interest in donating the embryos to another couple.

In J.B. v. M.B., 783 A.2d 707 (N.J. 2001), the husband wanted to preserve the embryos for another infertile couple to use.  The wife wanted them destroyed, and did not want her former husband to retain them, either for himself or to donate.  In reaching an ultimate decision, the New Jersey Supreme Court stated that it did not want to force the wife to become a biological parent against her will.

In Roman v. Roman, 193 S.W.3d 40 (Tex. App. 2006), the husband and wife had frozen their embryos, and had signed a contract with their fertility doctor.  In the contract, the parties agreed that if the parties divorce, then the embryos shall be destroyed.  The wife requested the embryos in the divorce action, but the husband objected, citing the contract.  Ultimately, in 2006, the Texas Court of Appeals ruled that the contract was valid and enforceable and superseded the wife’s desire to become a parent.

There is no United States Supreme Court on point, so currently, there is no legal consensus on the issue.  But one thing is certain – any couple contemplating in vitro fertilization should consider a contract, and include the possibility of divorce or separation.

 

 
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Slow Down and Move Over

May 15, 2014

 

Move over – it’s a simple maneuver that can mean the difference between life and death, yet some people still aren’t doing it.  When you see a police vehicle on the side of the road, you have to move over so the officers are protected.

Specifically, Virginia Code Section 46.2-921.1 states that drivers must (1) yield the right of way to a stationary vehicle that is displaying flashing, blinking, or alternating red, blue, or amber light or lights; (2) reduce speed when approaching emergency vehicles stopped on the side of the road; and (3) move to a travel lane further away from the stopped vehicles, when traffic conditions safely permit such a move.

A violation of the law is punishable as a traffic infraction.  However, a second or subsequent violation, when the violation involved a vehicle with flashing, blinking, or alternating red and blue lights, is punishable as a Class 1 misdemeanor.

Furthermore, if the violation results in property damage to another person’s property, your license could be suspended for up to one year.  If the violation results in injury to another person, your license could be suspended for up to two years.

Recently, several police officers have been injured by drivers not moving over for law enforcement.  There is new legislation in an effort to change the current move over law.  “Andew’s law” was written for Virginia State Trooper Andrew Fox, who was killed in 2012 when a driver hit him while he was directing traffic at a state fair.  The driver got a fine of $1,000 and a one year suspended sentence.  The bill currently pending would make violations of the move over law a Class 5 felony, with a maximum jail sentence of 10 years, a mandatory $2,500 fine, and a mandatory 1 year driver’s license suspension.  The Senate passed the bill in February 2014, but the House has continued it until 2015.

But slow down, and move over.  You’ll avoid a crime as well as possibly save someone’s life.

 
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Tax Considerations of Divorce

May 13, 2014

 

There are a number of tax considerations that need to be reviewed during and after a divorce. These decisions can have an impact on your financial future and your children.   To avoid unexpected surprises and financial hardship, you should keep the following tax considerations mind:

1 – Filing Status.  The issue of filing joint or separate taxes exists until the divorce becomes final.  A taxpayer’s marital status is determined as of December 31.  So if the Court has issued a divorce decree by December 31, you will file as single.  However, if you have not been granted a divorce by December 31 – either because the case is still in court, or because you have just separated in contemplation of divorce – then you have a choice.  You can either file as “married filing separately” or file a joint return.

However, if you file a joint return with your estranged spouse, you have joint and several liability for deficiencies on the return.  This means that you are responsible as a couple and individually for errors on your return.  You may also be liable for any deficiencies the IRS finds.  The IRS can pursue either or both spouses for the back taxes and penalties, regardless of any agreement you had with your spouse.  If you are concerned that your spouse may have unreported income, inaccurate deductions, or any other omissions, it would be wise to file separate returns.

2 – Dependency Exemption.  Who gets to claim the child is sometimes a contentious point in divorce negotiations.  Generally, the dependency exemption goes to the custodial parent under the Internal Revenue Code Section 152(e).  The parent with whom the child lives for the greater number of nights is the custodial parent.  If the child lived with each parent for an equal number of nights, then the parent with the higher adjusted gross income is considered the custodial parent.

However, many parents agree to share the dependency exemption in their separation agreement or settlement agreement.  The custodial parent can waive their right to the exemption and allow the non-custodial parent to claim the exemption via IRS Form 8332.  The release can cover a year, specific multiple years, or all future years.  It is critical that both parents do not claim the exemption, or else the return that was filed last will be held up and rejected by the IRS.

3 – Alimony and Child Support.  Alimony that is paid as part of a divorce or separation agreement is income to the recipient and deductible for the payee.  Those with high incomes can reduce their taxable income by paying alimony.  Child support, on the other hand, is not income and is not deductible.  The divorce decree or separation agreement should clearly spell out what is considered child support, and what is classified as alimony.

4 – Attorney’s Fees.  Fees paid to a lawyer for tax advice may be deductible.  You can deduct fees for research and advice on property transfers and dependency exemptions (subject to the two percent benchmark for miscellaneous expenses).  However, in order to deduct attorney’s fees for tax advice, the bill must specify how much time was spent devoted to tax issues.

These are just some general tax considerations to be aware of during a divorce. It’s also important that you discuss any tax consequences of divorce with your accountant.

 
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Five Things To Do After Your Divorce

May 7, 2014

 

Once you’ve attended the final hearing and the Judge has signed your divorce decree, it can feel like a huge relief.   You may be ready to get back to your life without court dates and documents.  However, there are some important things that need to be addressed post-divorce.  Here are five things you should do after your divorce is final:

1 – Update your beneficiaries.  This includes life insurance, disability insurance, retirement accounts, and estate documents.  The divorce decree will not do this automatically.  You should review your policies and ensure the proper beneficiaries are named.

2 – Transfer assets as ordered.  This includes deeds to real estate, titles to cars, designations on bank accounts, and designations on investment accounts, to name a few.  However the property is divided in the separation agreement or divorce decree, it is your responsibility to sign over any deeds or titles as soon as possible.

3 – Keep current with alimony or child support payments.  If you do not stay current, not only will it land you back in court, but other actions may be taken.  For example, failure to pay child support could result in the IRS keeping your tax refund, or the DMV suspending your license.

4 – Contact your children’s school.  Send a letter to your children’s school notifying them of your address (if it is different from the children) and requesting that copies of all correspondence, including report cards, be sent to you.

5 – Notify all organizations regarding your name change.  If you have opted to change your name post-divorce, you should change your name on your social security card, your driver’s license, your passport, your employer documentation, and anyone else who needs to know.

The break up of a marriage is a life-changing event.  Be smart and responsible in your divorce transition planning.  This is your new start, so seize the opportunity for future stability and security!

 
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Reckless Driving Has Far Reaching Consequences

May 5, 2014

 

Under Virginia law, reckless driving is a Class 1 misdemeanor, not just a speeding ticket.  The potential penalties include jail time, suspension of your driver’s license, a fine of $2,500 and six demerit points on your driver’s license.

It’s easier to be charged with reckless driving than you think.  The Virginia legislature has made several types of driving behavior “reckless” under the Virginia Code.  Two of the most common citations for reckless driving are: (1) driving in a manner generally endangering others under Virginia Code 46.2-852, and (2) exceeding the speed limit under Virginia Code 46.2-862.

The first section (Section 46.2-852) for driving in a manner endangering others, is so broad that officers can apply it to almost any circumstance.  The second section (Section 46.2-862) makes your driving reckless if you are driving over 80 miles per hour.  Period. The limit of 80 miles per hour surprises drivers because on many stretches of highway the posted speed limit is 70 miles per hour.  So you can get a reckless driving criminal misdemeanor charge for going 11 miles over the speed limit.

A bill to amend the 80 miles per hour language was introduced in the 2013 session, but died in committee.

If you are traveling 81 mph on a highway in Virginia, you could face far reaching consequences, besides the ones recited in the statutes:

Beware when driving in Virginia.  You could easily face a reckless driving charge.

 

 
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