Same-Sex Adoption in Virginia

The recent election has many in the LGBTQ community concerned about the rights of parents in same-sex marriages. There is no case on the issue currently pending before the Supreme Court, and the President-Elect has not said he wishes to see the Court overturn Obergefell v. Hodges. However, it is wise–as is having a Will and a Power of Attorney–for married same-sex couples to have the non-biological parent adopt any children of the marriage. Marriage between same-sex partners does not automatically grant the non-biological parent any parental, custody, visitation or other legal rights related to the spouse’s child(ren). Even a joint legal custody order—though better than nothing—does not convey upon the child or parent the same legal benefits as an adoption. No couple wants to worry that a court case may change their rights to parent their child. In Virginia, the spouse of a biological parent can adopt that child through a process which typically doesn’t require appointment of Guardian Ad Litem or even a court hearing.  If you would like to find out more about same-sex adoption or other issues, please contact us to set up a consultation.

Are your “Independent Contractors” really Employees?

By:  Lonnie C. Rich

In July, 2015, the Department of Labor (DOL) issued a new interpretation with a six-factor “economic analysis” for determining whether someone is an employee or an independent contractor. “Control” is no longer the dominant factor. 

At its most basic level, the issue may now be reduced to the following question: 

Is the worker economically dependent on the employer and “suffered or permitted” to work, or is the worker in business for himself or herself and truly not dependent upon the employer for work?

The six factors used in answering that question are set out below.  Each factor needs to be considered when classifying a worker.

1.       Is the work an integral part of the employer’s business?  For a construction company, carpenters are integral.  For that same construction company, a software developer that develops software to track bids, materials, schedules and orders is not integral and may operate more like an independent contractor.

2.       Does the worker’s managerial skills affect the worker’s opportunity for profit or loss?  If the worker has the opportunity for making more or less depending on their management actions – job selection, hiring employees, advertising, buying more efficient equipment or computer programs, they are more like an independent contractor.  If the worker can simply do their job well or can work more or less hours, that is not managerial skill, but making choices just like an employee.

3.       How does the worker’s relative investment compare to the employer’s investment?  A rig welder’s investment in equipped trucks costing about $40,000, is minimal compared to the millions invested by the employer.  The greater the disparity in investment, the more likely one is to be an employee.

4.       Does the work performed require special skill and initiative?  The skill of a worker does not necessarily indicate independence from the employer.  Even if there are special skills, those skills may not be used in an independent way.  If special skills lead to economic independence from the employer, then the worker is more like an independent contractor.

5.       Is the relationship between worker and employer permanent or indefinite?  If either, that suggests employee, not an independent contractor. 

6.       What is the nature and degree of employer’s control?  Is the worker’s control such that he or she seems to be conducting their own business?  Lack of immediate and direct control (“looking over another’s shoulder”) or control over hours is not indicative of independent contractor status.  With technological advances and enhanced monitoring, there are new ways for employers to exercise control.

DOL has concluded that most workers are employees, not independent contractors.

While this is not binding, the DOL opinion will be given deference by the courts.

Employers need to be concerned about whether they have classified their workers correctly.  Failure to do so can have significant implications for employment taxes, minimum and overtime wages, unemployment and workers compensation insurance as well as entitlement benefits. Getting it wrong can result in significant liability.

RRBMDK has attorneys available to assist you in interpreting, creating and maintaining proper worker classification.

What is Collaborative Divorce?

Many men and women going through a divorce want it to be amicable and transparent.  The collaborative divorce is actually a process where the parties agree from the beginning to work as part of a team, which includes attorneys as well as other professionals, to resolve custody, support, and property distribution.  The collaborative practice is client-centered and client-controlled.
 

Based on the particular needs of the parties, the team may include a neutral financial planner, a children’s therapist, and a divorce coach, who is a mental health professional.  The   collaborative divorce process focuses on open communication and information sharing rather than litigation strategy.  Information is freely disclosed and the parties commit to full disclosure at the commencement of the process. 

Prior to commencing the team work, the parties enter into a collaborative agreement stating that they will negotiate an acceptable settlement without going to court.  The hope is that the parties may more effectively resolve the issues if they do not have the fear of litigation hanging over their heads.  If the parties later determine they cannot reach an agreement through the collaborative process, their collaborative attorneys will not represent them in court, which may provide incentive to stick with the collaborative process, even if frustration arises.

A collaborative divorce includes many benefits, including the potential for improved communication and trust between the parties, and placing the parties and family in the priority position rather than focusing on legal strategic positioning.  It is a newer method for resolving difficult and challenging family law issues, but it is a positive step toward keeping families out of the courtroom.  

Wills and Estate Planning -- Engaging an Attorney

 by Lonnie C. Rich

 Once you have decided that you want to get your Will, Trust and other planning documents prepared, you need to pick an attorney.  How do you do that?  How much does it cost? How long does it take?  What do I need to bring to the first meeting?

The best way to pick an attorney is to choose someone that 1) you know personally and trust, and 2) has experience with estate planning.  The next best way is to ask for a referral from a trusted friend or professional advisors: CPA, financial advisor, or insurance agent. Remember, you may need to return to the attorney on multiple occasions as life changes require you to update your current plan and documents, so be sure you are comfortable with whomever you choose. 

In your first conversation with an attorney, ask how they charge and what is included.  RRBMDK, like many attorneys, works on an hourly basis; but we give a fairly narrow range of the likely fees.  This has the disadvantage of a little uncertainty, but has the advantage of fairness – some pay a little more or little less than others because their situation or desires take more time or less time than others.  Other attorneys offer a flat fee which is usually based on the higher end of the estimated time to perform the services.  The flat fee offers certainty, but means that you may pay more than the actual work justifies on an hourly basis.

As to how long it takes, that usually depends on your urgency.  Some attorneys routinely take several months.  At RRBMDK, it is usually 2-3 weeks from start to finish; but we can work faster in an emergency.

What do you need for the first meeting?  Some attorneys ask you to fill out a lengthy questionnaire. At RRBMDK, our experience is that many potential clients wither under such a load; and then they never complete the process.  Rather, we ask for a simple family tree and a one-page financial – 20 minutes of your time. 

Lonnie C. Rich, a partner at RRBMDK, has been helping client with Estate Planning in Northern Virginia for over 30 years.  If you have questions, give him a call.

Marriage Equality

On October 6, 2014, the U.S. Supreme Court let stand the decision in Bostic v. Schaefer, which held that same-sex couples cannot be denied the right to marry.  There are many implications for the LGBT community, especially in estate planning. 

For same-sex couples who can now get married in Virginia, you will have all of the benefits of a traditional marriage.  1) You will have an unlimited marital deduction, which means that same-sex couples can give an unlimited amount during their life or at death to their spouse without any estate or gift taxes. 2) Each individual has a $5.34M personal exemption from estate taxes; and with an election can combine that exemption with their spouse for a $10.68M exemption for both together.  3) As spouses, you can make an election which would double your annual exclusion amounts from $14,000 to $28,000 for purposes of annual gifts to as many people as you want.  4) Now, a same-sex spouse will be able to make health care decisions even if there is not a formal written advance medical directive.  This has always been the law for a traditional spouse. 5) Same-sex couples will be able to take title to property as “tenants by the entireties,” which provides significant creditor protection for the non-debtor spouse.

The recent extension of the right to marry to same-sex couples has many implications, not just in estate planning, but in other areas of the law, such as family law and retirement, both of which involve individual rights and responsibilities.   

Consideration of Criminal Records in the Hiring Process

          Criminal background checks have always been somewhat of a controversial tool for reaching hiring decisions.  The federal law that prohibits job discrimination, Title VII of the Civil Rights Act of 1964, protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Title VII protects employees and applicants from policies or practices that disproportionately screen out members of a particular race, ethnicity, or other protected class.  Title VII does not bar criminal background checks, but it does govern how such information may be used by an employer.

          The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces Title VII.  In April 2012, the EEOC issued updated guidance (Guidance) for employers, explaining how they can screen out applicants who might be dangerous or pose a safety risk without engaging in discrimination.[1]  The concern about criminal background checks is based on data showing that arrest and incarceration rates are much higher for African Americans and Latinos.[2]  The EEOC makes clear that employers will violate Title VII if they intentionally discriminate among individuals with similar criminal histories or if their policies have a disproportionate adverse impact based on race, national origin or some other protected status and employers are unable to demonstrate “business necessity” for utilizing an applicant’s criminal history in making a hiring decision. [3]

The EEOC explains that in deciding whether a particular offense should disqualify an applicant or employee, employers must consider:

·         the nature and gravity of the criminal offense or conduct

·         how much time has passed since the offense or sentence, and

·         the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

According to the EEOC, employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

Protected persons who are denied employment because of a criminal background check may have viable Title VII claims where:

– Denial of employment was based solely on an arrest;

– The employer used a blanket exclusion that screened out all persons who have ever been convicted of a crime;

– The exclusion did not take into account the nature of the crime, the amount of time elapsed since it occurred, and the nature of the job;

– The employer did not provide an opportunity for the excluded person to explain a criminal matter;

– The employer has a reputation for excluding persons with criminal backgrounds; or

– The employer has expressed stereotypical views concerning the criminality of certain racial or ethnic groups.

The EEOC identified the following "Best Practices" that employers can take when considering arrest and conviction records in making employment decisions:

– Develop written policies and procedures for screening applicants and employees regarding criminal conduct;

– Train managers, hiring officials, and decision makers regarding implementation of the policies and procedures;

– Limit inquiries regarding criminal records to those that are "job related for the position in question and consistent with business necessity"; and

– Keep information regarding applicant and employee criminal records confidential.

Of note is that Virginia law protects applicants with criminal records that have been expunged.[4]  An employer may not ask applicants to disclose expunged criminal charges, whether on an application form, in an interview, or in another forum.  An applicant need not refer to any expunged charges if asked about his or her criminal record.

            EEOC’s Guidance is not binding law, but it sets the standard that the EEOC will use when evaluating discrimination complaints based on the use of criminal history information in employment decision.  However, courts may use it in their analysis of these issues and employers need to act carefully.   Most hiring practices almost always benefit from review by an attorney familiar with these laws and recent decisions. You can contact one of RRBMDK’s employment attorneys if you have any questions about the recent EEOC Guidance or other aspects of your hiring practices.

[1] EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, Issued April 25, 2012.  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#sdendnote128anc

[2] See Pew Ctr. on the States, Collateral Costs: Incarceration’s Effect on Economic Mobility 6 (2010), http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653(“Simply stated, incarceration in America is concentrated among African American men. While 1 in every 87 white males ages 18 to 64 is incarcerated and the number for similarly-aged Hispanic males is 1 in 36, for black men it is 1 in 12.”). Incarceration rates are even starker for 20-to-34-year-old men without a high school diploma or GED: 1 in 8 White males in this demographic group is incarcerated, compared to 1 in 14 Hispanic males, and 1 in 3 Black males. Pew Ctr. on the States, supra, at 8, Figure 2.
[3] 42 U.S.C. §§ 2000e-2(k)(1)(A)(i), (ii), C.
[4] Va. Code Ann. § 19.2-392.4

Characteristics of At-Will Employment

     The vast majority of employment relationships in place today are at-will.  That means that there is no contract specifically governing the employment relationship between the employer and a given individual employee.   At-will employment generally has the following characteristics:

•  Unspecified duration.  At-will employment is characterized by an undefined period into the future, but without a commitment for a certain minimum period.  The vast majority of employer-employee relationships are at-will.

      For example, a small business retail establishment who hires someone to work as a sales associate either full or part-time is typically an at-will employee.  Generally, employers advertise their staffing needs, prospective employees apply, and then the employer hires one or more applicants.  Often the new employee is provided employment forms, but not typically a written contract binding them to service for a certain period of time. 

• Can be terminated without cause.  Generally the employment relationship remains intact so long as the relationship remains mutually beneficial to both employee and employer.    While no cause is required to terminate the at-will employment relationship, causal explanations for terminations related to financial hardships or corporate mergers are common.  Termination for cause might include, stealing, lying, failing a drug or alcohol test, falsifying records, insubordination, and deliberately violating company policy.   

When an employee finds himself out of a job, he or she often struggles to understand why.  However, the law does not require employers to provide a cause, or explanation, for the termination in an at-will employment relationship. 

•  Can be terminated without notice.   Employees customarily give current employers a period of notice before commencing employment with a new employer, particularly if the new employer is in the same field as the current employer.  However, this notice period is not required in at-will employment relationship and is done merely as a courtesy to the old employer.  

           So which employees are not at-will employees?  Employees covered by a written contract, such as a union agreement or other contract, are not at-will employees.  Employment contracts are common for temporary employees and high level executives among other individuals.  It is also possible to have an implied contract based on your employer’s words or actions.

      

           In addition, under the laws of Virginia (and many other jurisdictions, including D.C.) the discharge of an employee for exercising rights guaranteed by public policy (as embodied in a specific statute) may give rise to an action for wrongful termination.

            While employers have wide latitude to dismiss at-will employees without notice or cause, the law does not permit discrimination, including terminations, based on race, color, national origin, gender, religion, age, or disability.  If you suspect you have been wrongfully terminated, it is best to talk to an attorney about your particular situation.   By first talking with any of the RRBMDK attorneys that handle employment matters, you’ll be able to make an informed decision about your situation and whether legal action makes sense.

Structure of Mediation

If you can persuade the adversaries in a difficult dispute to agree on the structure for mediating the dispute, you may be able to avoid having to pay thousands of dollars in legal fees to resolve the same issues by litigation. As stated, the structure of the mediation is critical.

                                                                                                                       

The parties must agree on a Chair/Moderator/Facilitator who will chair the discussion(s) and

1. Obtain the express agreement of all of the participants to comply with a mutually acceptable set of Behavioral Rules for a Successful Discussion (See the checklist below) established by the Facilitator and the participants. These must be finalized before any discussions begin and everyone must agree that the Facilitator has the absolute authority to manage the discussion and apply the Rules;

2. Help to identify the ultimate common goal(s) of the parties; For example, “To determine whether or not the parties are willing to work together to resolve any legitimate issues between them that would prevent going forward with the construction and sale of the subject property”.

3. Identify the issue(s) that each party wishes to discuss and the method for determining the order in which each issue will be taken up, and

4. Manage the discussion of each issue to ensure that:
1. the participants comply with the adopted Rules, and
2. the discussions focus on one issue at a time in the order agreed, and
3. the discussions move along as quickly and courteously as possible, and
4. no one filibusters or repeats arguments.

Sample checklist of Behavioral Rules for Successful Discussions:

1. No raised voices.
2. No profanity, curse words, etc.
3. No threats.
4. No disparaging, insulting, demeaning remarks or accusations.
5. Always speak and act in a courteous and professional manner toward everyone.
6. Let go of the past; let go of blaming; begin the discussions with a new, clean sheet of paper.
7. Really listen to the person who is speaking and don’t interrupt the speaker.
8. Ask questions to make sure that you understand what the speaker is saying and his/her point of view.
9. Whether speaking or listening, try to distinguish facts from beliefs, conclusions, feelings and perceptions that may not be supported by facts.
10. Try to discuss facts that can be independently established as correct or incorrect.
11. Eliminate adverbs and avoid adjectives that send meta-messages.
12. Beware of non-verbal communications: raised voice; intensity; tone; inflection; body language; facial expression.
13. Most important of all, give everyone a full and fair opportunity to be completely heard with respect to all aspects of their concerns, issues, positions, points of view, etc.

If adversaries are willing to discuss their differences courteously and in good faith, in the manner described above, there should be few disputes that could not be resolved without litigation.  

  

 - Beau Brincefield

What is Probate?

Probate is the official proving and recording of a will as the authentic and valid last will and testament of the deceased.  The will should be probated where the decedent (deceased individual) resided at the time of his or her death.  If the decedent passed away in a nursing home or similar institution, then the individual’s residence would be where he or she resided before the nursing home. 

Probate is necessary when the decedent has solely-held assets, which are assets that were not jointly owned or already designated to a beneficiary.  Assets involved in probate include real property and personal property such as bank accounts, cars, stocks and bonds, and personal belongings.  Life insurance and retirement accounts are usually not included in probate because they have named beneficiaries.

            What to bring to the Probate appointment at the Courthouse:

·         The original Will;

·         A certified copy of the death certificate;

·         If the Will is self-proving, you do not need to bring the witnesses to the Will or depositions of the witnesses;

·         The approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles, etc.) and the fair market value of real estate located in Virginia which must pass through probate;

·         The names, ages, and addresses of the heirs at law.  The heirs at law are not necessarily the beneficiaries of the Will.  Heirs at law are determined by kinship to the deceased;

·         Cash or check to pay fees.  Visa and Mastercard are also accepted.  There is a processing fee for each credit card transaction;

·         Valid photo identification.

      Do you need an attorney?  Not necessarily, but you should talk to an attorney about your particular situation.  You may need just a small amount of legal assistance or you may need a significant amount of  legal assistance.  It’s also possible you may be able to handle probate entirely on your own, but by first talking with any of the RRBMDK attorneys that handle will and estate matters, you’ll be able to make an informed decision about your probate legal needs.

Mediation and Custody

Contested custody cases often have a negative impact on the children who are at the heart of the matter.  While parents may have good intentions, the children often get caught in the middle as the parents attempt to work out custody and visitation schedules.

Mediation is often an effective form of resolving custody disputes.  The typical goals in mediation include creating a settlement that is in the best interest of the children, creating a parenting plan that allows both parties significant time with the children, and working toward a more cost-effective resolution—both money-wise and emotionally.

 

There are three types of mediation often utilized in custody matters:  facilitative, evaluative, and transformative.

a. Facilitative mediation.  In facilitative mediation, the mediator does not typically give his own opinions as to potential outcomes if the parties litigate.  The mediator facilitates the process through asking questions, pointing out common interests and points of view, and assisting the parties in analyzing options.  The parties are in control of reaching a resolution.  Typically, the mediator meets for joint sessions with both parties and without attorneys as they want the parties to form their own agreements without the influence of others, including the attorneys. 

b.  Evaluative mediation.  The evaluative mediation process utilizes a mediator who is usually also experienced with the litigation model of resolving custody cases.  The evaluative mediator, who is often a retired judge, helps the parties resolve the custody case by pointing out weaknesses in each party’s case and making predictions as to what a judge may or may not do.  Evaluative mediation is based on the standard set by the law.    Most often, the parties and their attorneys meet together with the mediator.

   

c.  Transformative mediation.  Transformative mediation is the newest of the three mediation forms.  The concept of transformative mediation is based on empowering each of the parties in the decision making process and teaching each party to recognize the needs, interests, values, and points of view of the other party.  The potential for each party to “transform” in his or her relationship with the other party provides an opportunity for the parties to not only resolve the current custody dispute but to hopefully learn a process of dispute resolution they can effect moving forward.  Transformative mediators meet with the parties together.  Transformative mediation is also the form used in the collaborative law process. 

There are pros and cons to each type of mediation.  Feel free to contact one of our attorneys at RRBMDK if you would like additional information on utilizing mediation in custody or divorce cases.  

Attorney’s Fees – The Oft Neglected but Crucial Provision

On the issue of attorney’s fees, Virginia and many other states subscribe to what is known as the “American Rule.”  The “rule” states that all parties to a lawsuit will be responsible for their own attorney’s fees regardless of who “wins” unless a contractual provision or statute provides otherwise.  Even so, it is often surprising how many contracts fail to include any terms regarding the ability to recover reasonable attorney’s fees in the event that a party needs to sue for breach of the contract.  When negotiating terms, parties routinely fail to consider the costs associated with initiating or defending a lawsuit arising from the contract.  These costs, including but not limited to attorney’s fees, are significant.  In some cases, these costs can even exceed the actual damages incurred as a result of the breach.  In that instance, the wronged party can never be “made whole” because he or she has had to absorb the costs of the lawsuit.  This result can easily be avoided if the contract provides for the ability of a prevailing party in a suit for breach to collect attorney’s fees. 

Attorney’s fees provisions can also benefit the parties by discouraging litigation in some circumstances, or reducing the time before settlement of litigation in others.  The provision should deter a party from filing any lawsuit that is not a) necessary and b) well-founded, due to the risk that he or she will be ordered to cover the opposing party’s fees if the suit is not successful.  The same risk encourages parties to enter into negotiations and reach a resolution before incurring substantial fees.  Although an attorney’s fee provision is a necessary and far reaching provision, it terms are relatively straight forward and simple.  When entering into negotiations regarding the language and terms of a contract, or before drafting even the simplest agreement of your own, it is always in your best interest to consult an attorney to ensure that the ability to recover reasonable attorney’s fees is provided clearly and in accordance with the law of the jurisdiction that will be used to interpret the contract in the case of an alleged breach.  While many people believe that they only need an attorney once a problem arises, it is only by consulting an attorney prior to the execution of the contract that you can ensure you are protected before it’s too late.  RRBMDK attorneys are experienced in drafting and reviewing contracts/agreements arising in various areas of law – from Real Estate to Family Law, Employment to Corporate Organization, and want to urge anyone considering entering into a written contract to call upon us for a thorough document review, and to answer any questions related to that ever-present “fine print.”  

RRBMDK Expands With the Addition of Three New Attorneys

RRBMDK recently added three additional attorneys to our firm. They bring a wealth of experience for our clients.

Tom Urban attended the Naval Academy and Texas A&M, with distinction, expecting to pursue a career as an aeronautical engineer. He participated in one of NASA’s early research projects dealing with a manned mission to Mars. Choosing to attend law school instead of pursuing aeronautical engineering, Tom graduated from the Georgetown University Law Center, convinced that his future looked brighter here, on earth, as an associate at Williams and Connolly rather than a life among the stars.  Tom now has more than 20 years as a trial attorney handling a wide variety of complex civil and criminal cases all over the country including RICO, antitrust, employment discrimination and whistleblower claims, white collar crimes, class actions, securities law, toxic torts, corporate fraud, banking law and financial services litigation.

Elizabeth “Liz” Csoka-Bubacz  brings to the firm a solid background in real estate transactions. Having formed and managed her own real estate settlement company, she is familiar with all aspects of real estate settlements, including financing and title insurance. She has litigated a wide variety of real estate and other claims, both in bench trials in General District Courts and jury trials in Circuit Courts, including claims involving RESPA and TILA violations, wrongful foreclosures and landlord/tenant disputes. She has also advised and represented many clients in connection with short sales, foreclosures and deficiency judgments. Liz has shared her expertise through seminars and courses dealing with Fair Housing Regulations, Ethics, and home inspections.

Mark Sullivan is our most recent addition. Before joining us, he served in the Fairfax Commonwealth’s Attorney’s Office for eight years, prosecuting all types of criminal misdemeanor and felony cases. Prior to that, Mark spent seven years in private practice dealing with all aspects of negotiating commercial contracts and complex litigation, including construction and leasing issues, intellectual property rights, and employment law.

We are delighted to welcome Tom, Liz and Mark to the firm. They not only deepen our bench in areas in which we already practice — real estate, complex civil litigation and criminal defense --but they also free up time for our attorneys who concentrate on other areas of our practice — corporate and business transactions, employment law, land use, wills, trusts and estates, civil rights and family law.

Contact us if you think that we can be of any assistance to you, your family, your friends and acquaintances (we are growing and always appreciate referrals) in any of the areas in which we practice. Even if we can’t help you with a particular legal matter, we will do our best to refer you to a well-qualified lawyer who can help you.

Underage Drinking: What To Do When The Party's Over

It’s that time of the year again when Prom, “Senior Skip Day,” Graduation and Beach Week all lead to one thing:  Underage Drinking.  So, what should you do when you get that dreaded phone call or knock on the door and your teen has been arrested?  Protect his rights.  Protect her future.  Calling an attorney is not about “getting your kid out of it,” it’s about making sure that a foolish mistake doesn’t cause long-term damage.

Most people know that purchasing, possessing or drinking alcohol when under 21 years of age is a crime, with a few exceptions.[1]  Underage drinking is formally charged as Underage Possession of Alcohol.  If your teen is 18 years or older, this is a misdemeanor criminal offense that carries a maximum punishment of 12 months in jail and/or a $2,500 fine, as well as a 6- to 12-month suspension of the right to operate a motor vehicle.[2]  The case will proceed through the General District Court for final disposition. 

If your teen is under 18, the case will proceed through the juvenile justice system.  Purchasing, possessing or drinking alcohol is considered a “delinquent act,” not a crime.  Not all juvenile arrests for underage drinking result in court proceedings, but if the case does proceed to court in Virginia, it will be handled by the Juvenile and Domestic Relations District Court.  If the Judge determines that the facts are sufficient to justify a finding of underage drinking, the court must deny driving privileges for at least 6 months or deny the child's ability to apply for a driver's license for six months following the date she reaches the age of 16 and three months.  Other potential dispositions include, but are not limited to, mandatory attendance and completion of law-related or substance abuse educational or rehabilitative programs, community service, “house arrest, ” probation, or fines. 

Whether your teen is under 18 years old or not, the Commonwealth must prove its case in court.  Never assume the case is a ”slam dunk” for the prosecution, at any stage.   Your teen cannot be found guilty by association--merely being at a party is not a basis to convict.   Your teen typically cannot be found guilty merely because the officer detects the odor of alcohol.   Your teen has rights, including the right not to answer questions and to refuse a breath test at the scene.  If challenged, the prosecutor must prove your teen’s rights have not been violated or face a potential dismissal of the case.

A “finding of delinquency” or a criminal conviction has collateral consequences you might not think of or know about.  If you find yourself in this situation in the coming weeks of parties – or at any time – the attorneys of RRBMDK can help.

---

[1] For example, underage consumption of alcohol in Virginia is allowed in private, residential homes as long as the underage person is accompanied by the physical presence of a parent, legal guardian, or spouse who is at least 21.  Va. Code § 4.1-200.

[2] Public Intoxication is also a misdemeanor, but the maximum penalty is a $250 fine (and a 6-month license suspension if your teen is under 18).  Va. Code §§ 16.1-278.9, 18.2-388.

Real Estate Contract Terms Are Negotiable

As the real estate market begins to recover, it is more important than ever to understand the contracts that you are asked to sign whether you are purchasing/selling or leasing your home. While you may be presented with a pre-printed standard purchase contract or lease, each term is negotiable and should be looked at as such. Not only is it important to understand what your responsibilities are under the contract, it is equally important to understand the consequences of not performing those responsibilities.

All too often, we are asked to review a fully-executed purchase contract only after a problem has arisen between the purchaser and seller. The majority of the time, we find out that one or both of the parties did not understand their duties and responsibilities under the contract. While a good real estate agent can serve a vital role in the purchasing, selling or leasing process, they cannot give you legal advice. Buying or selling a home is one of the biggest and most important investments of your life. Hiring a real estate attorneys to review your contract prior to executing it can not only give you peace of mind in your decision, but it can also end up saving you thousands of dollars in attorneys fees if you are caught in a dispute later in the process.

Divorce – Do I Need An Attorney?

Divorces require time and attention, and can therefore lead to substantial attorneys fees.  Many parties work out many of the details of settlement on their own and question the necessity of hiring counsel.  After all, a party is permitted to file and proceed in obtaining a Final Decree of Divorce pro se, or “for oneself.”   The answer, therefore – much like the process itself – is not a simple one.  There is not a “one size fits all” solution.  Parties dealing with particular issues or living in particular jurisdictions (even within the same general geographic area) may “need” counsel more than others. 

Understand first that simply because both parties agree they want a divorce, a matter is not rendered “uncontested.”  If the parties disagree on any of the issues that the Court must determine in a divorce proceeding (e.g., property distribution, spousal or child support, child custody/visitation) then the case is not uncontested.  Even if parties are only arguing over whether Mr. or Mrs. gets to keep the engagement ring, the divorce is not uncontested.  What also occurs quite often is that parties agree on all of these matters, but one party will not actually sign a settlement agreement or Final Decree of Divorce setting forth the agreed upon terms.  This too is not an uncontested divorce. 

Where matters are  truly uncontested (involving parties who have settled all matters and have done so in writing), the filing party may nonetheless be living in a jurisdiction with stringent requirements for the content of Final Decrees or  other complex procedures or docketing practices that render it preferable, even if not necessary, to have counsel handle finalizing the divorce.   Finally, in certain cases, there may be unique complicating factors, such as a need to serve one’s spouse out of state or by publication.  So, although every jurisdiction in Northern Virginia provides a pro se divorce package containing the tools needed to complete most, simple, uncontested divorces.  Whether those tools can be used in your case is another question: 

If one’s case is fully uncontested -- meaning that there are no disputes regarding the existence of “no-fault” grounds for the divorce (i.e., six months’ separation with written settlement agreement and no children, one year separation otherwise); property distribution (i.e., everyone is satisfied with who is taking/keeping what); child custody & visitation; child support or spousal support, or no such issues exist (no children, no marital property) -- pro se might be the way to go.   In either case, the Plaintiff would indicate in his/her Complaint  for Divorce the status (e.g., there are no issues of equitable distribution, custody or support, or the parties have signed an agreement settling them all) and if agreed, the opposing party would “admit” (i.e., concede, agree with) that allegation in his/her responsive pleading OR waive the right to file a responsive pleading altogether.  If in fact some or all of those have been resolved, rather than do not exist, one must be sure that all agreed upon terms regarding children, support and/or property distribution have been reduced to writing in a settlement or separation agreement, or at least into the Final Decree to be submitted to the Court, before you ask the Court to finalize a divorce.  Courts will not simply divorce parties with children, for example, without addressing custody, visitation and support in the Final Decree, even if merely by reference to a written agreement. 

BOTTOM LINE:  If you’re going to go it alone, do it carefully, and it’s still a good idea to sit down for a brief consultation with a RRBMDK family law attorney to make sure that your case is ripe for filing, that you’ve addressed all potential issues with your spouse, that your ducks are in a row as far as filings and service, and that there don’t appear to be any complicating factors related to your case or unique to your jurisdiction.  

Facebook and Family Law: The New Peril of Timeline

There are a number of factors that anyone having and using Facebook should consider when they are in or could be involved in a family law matter.  Of course the absolute best practice would be to delete the account, or not have any current use of it, that’s not always an easy thing for people to give up.  And deleting a Facebook account is not easy, but can be done by following these steps.  Even if you stop current use, without deleting the account there is still a lot of visible information about you out there. 

The first step should be to re-evaluate your Facebook friends wisely and de-friend estranged spouses, family and friends.  It’s also more important than ever to review those security and privacy settings.  Choose carefully who can see what information you post, and certainly never keep any part of your profile public.  One of the first things opposing attorneys do when taking a case is a general online search of the opposing party, including Facebook. 

Remember your Facebook page will still be viewable to a large number of comingled friends who can take screen shots or print your Facebook page, so being careful about what you post is also critical.  More and more often Facebook pages are popping up as evidence in divorce or custody and visitation trials.  Additionally, Facebook pages show a general trend in a person’s behavior, possible signs of an adulterous relationship and parenting decisions.  

Now all Facebook users have been forced to the new Timeline format.  Timeline was created to highlight the most memorable posts, life events and photos of your life.  This feature allows people with access to your Facebook page to view items and information spanning back to when you joined Facebook, and possibly before if you were tagged or have been tagged in events prior to your joining Facebook, easier and quicker than ever.

When your page switched over for you as a user, you had seven days to edit it before anyone with access to your page would view it in Timeline format.  After that point all your past that wasn’t hidden was placed on your visible Timeline profile.  If you haven’t done so already you should carefully go back through your timeline from start to finish and carefully review all posts and pictures.  You can hide, edit or remove any posts, or pictures, you don’t want visible to others on your timeline.  Also consider un-tagging yourself in any unflattering photos and/or ask the person who posted it to delete it.  Generally your profile picture and cover photo will still be publicly viewable, even if you have changed your privacy settings to be very strict, so be careful what photos you use for your profile and cover. 

It’s generally good practice to not over-share on Facebook, whether it be using Facebook check-ins, posts, status updates and pictures.  But also be cognizant of which applications you allow to automatically share information on your page such as Instagram, Living Social and Four Square. 

Lastly, remember that venting about what you are going through or things that an opposing party or potential witness did in a public format is never smart.  Don’t post anything you wouldn’t want a grumpy Judge, who doesn’t know you enough to put what you said in context and who controls your destiny, to see.