Virginia Bankruptcy Law

In Bankruptcy, can I keep my house and vehicles?

That depends. If you are currently behind on your monthly payments, a Chapter 13 bankruptcy will allow you to keep the property and pay any arrearages through your Chapter 13 plan. If you file a Chapter 7, and are current on your payments, you will be entitled to keep the property, provided you remain current on all payments. If you are behind in payments in a Chapter 7 bankruptcy, there is a possibility that you will lose the property.

If your house and/or vehicles are paid for, we will need to protect your property so that it will not be used to pay off a portion of your debt.

What debts will not be "wiped out?"

Certain debts will not be discharged, even if you file for bankruptcy. These debts include, but are not limited to, certain income taxes, student loans, certain fines and court costs, and certain personal injury claims arising from a DUI charge. Since each situation is unique, we will review your debts and will advise you as to which ones are likely dischargeable and which ones are likely not.

Can I choose which debts to include in my bankruptcy?

No. Federal law requires that debtors list all creditors, including those they wish to pay back. Anyone that is owed money, including family members, must be listed in the bankruptcy paperwork. The law requires hat all creditors be treated equally. Keep in mind, however, that nothing prevents you from paying back a debt, even after it is discharged by the court.

How long does a Chapter 13 Payment Plan last?

The payment plans range from 36 to 60 months in length, depending on several factors, including the amount and type of debts paid in the plan, as well as the amount of money available for the payment.

How will bankruptcy affect my credit in the future?

Your credit score will always be a matter of personal preference to any potential lender. You will find that some lenders will give more consideration to a bankruptcy than other lenders. The best way to help yourself is to remain current on any remaining obligations you may have (such as mortgage payments, rent, car payments, etc...)

Divorce & Family Law

What is the best way to settle divorce issues?

Husband and Wife will minimize trial time and costs. This agreement settles the rights and responsibilities of each party concerning the issues of child custody, visitation, support, personal property, etc. It must be fair as well as complete and detailed. Both parties must be in agreement with the provisions of this contract. The Agreement may be drafted and negotiated by you and your attorney.

What happens if an agreement can't be reached?

In the event an agreement cannot be reached, parties may need to proceed with a hearing. This hearing is called a Pendente Lite hearing. At this hearing, a Judge may grant an award of temporary child custody and support, temporary spousal support, temporary use and possession of the home, injunctions and other forms of relief. The results of this hearing are temporary. The decision, however, allows the parties to either reach a permanent agreement on the issues, or gives them time to prepare for trial on the unresolved issues.

How long do we have to be separated before we can file for divorce?

In Virginia, final no-fault divorce may not be granted until the parties have been separated at least one year if there are children born of the marriage. In the event there are no children and the parties sign a Separation Agreement, they may proceed with the divorce after a six-month separation. A fault-based divorce (such as one on the grounds of abandonment, abuse, adultery, etc...) does not require a waiting period to file. We will discuss with you whether a fault-based divorce is appropriate in your case.

What are the steps in a typical divorce?

To begin the divorce proceedings, a Divorce Bill of Complaint is filed with the court. Your spouse will have twenty-one days to answer this Bill of Complaint once it has been served. Your spouse can also accept service and sign a waiver, which speeds up the process. Depending on the type of divorce, a Pendente Lite hearing may be scheduled at this time. Other times, parties are ready to be heard. In that case, the Judge or a Commissioner will hold your divorce hearing. Usually, after the decision, the Judge enters the final decree. Once that is entered, the divorce is final. Remember that this is a basic overview of Divorce. Each divorce is different and your divorce may require other steps or courses of action, such as publication or other court hearings.

Traffic & Criminal Law

When do I need an attorney?

If you ever find yourself in the unfortunate position of being charged with a crime, you must remember that, if convicted, you will carry that conviction with you for the rest of your life. This is not the time to represent yourself in order to save money. Depending on the severity of the charge, you may either be able to just pay a fine (without a court appearance) or you may be at risk of receiving a jail sentence.

In Virginia, there are four classes of misdemeanors; the maximum sentence for each is specified below:
1. Class 1: 12 months in jail, $2,500.00 fine
2. Class 2: 6 months in jail, $1,000.00 fine
3. Class 3: $500 fine
4. Class 4: $250 fine

There are also six classes of felonies, the maximum sentence for each is specified below:
1. Class 1: death or life imprisonment and possibly, $100,000.00 fine.
2. Class 2: life imprisonment or 20 years in prison and possibly, $100,000.00 fine
3. Class 3: not less than 5, no more than 20 years in prison, and possibly, $100,000.00 fine
4. Class 4: not less than 2 years, no more than 10 years in prison, and possibly, $100,000.00 fine
5. Class 5: not less than 1 year, no more than 10 years in prison (this charge does carry the possibility of no more than 12 months in jail and no more than $2,500.00 fine)
6. Class 6: not less than 1 year, no more than 5 years in prison (this charge does carry the possibility of no more than 12 months in jail and no more than $2,500.00 fine)

Keep in mind that these are the maximum sentences. When possible, an attorney can help with creative sentencing alternatives, and can explain the options available. Not every conviction results in the maximum sentence available.

How do I know the results you will obtain for me? Can you guarantee results?
We do not guarantee results. There are too many variables in any particular case. After interviewing you to determine what happened, we must also speak with the arresting officer, the prosecuting attorney and any witnesses. Once we have a clear picture of the evidence that will be presented in court, we will then be in a better position to let you know what to expect.

I've been convicted of a crime; can I appeal?

If you have been convicted of a crime, and your case was heard in General District Court, you have 10 days from the date of trial to appeal. Your appeal will be to the Circuit Court, and your case will be heard as if there never was a trial in General District Court. In other words, you get a new trial. You also have 30 days from the date of trial to ask for a rehearing of your case in General District Court. In most cases, an appeal is preferable to a rehearing. Keep in mind that asking for a rehearing is not the same as asking for an appeal. If you do not file an appeal in time, for whatever reason, you lose your right to appeal.

If you have been convicted in Circuit Court, you would file your appeal with the Court of Appeals. In this appeal, unlike the appeal from General District Court, you do not get a new trial. The Court of Appeals will not review any new evidence, but will instead rely on the evidence already presented in Circuit Court. This type of appeal is typically limited to review of legal errors.

I have been arrested and charged with a crime. What happens now?

That depends on the type of crime charged and the city in which the crime occurred. If the charge is a misdemeanor, the officer will typically write your court date on the ticket itself. In most cases, you appear in court on that date and are tried for the charge that day. In some cases, particularly in certain cities, your first court date may be an arraignment date, where the judge reads the charge(s) against you, determines if you would like an attorney to represent you, and if you are in jail, decides whether to release you on bond.

If you have been charged with a felony, you may be arrested and taken to the city jail. Shortly thereafter, you attend an arraignment, where the judge reads the charge(s) against you, determines whether you desire an attorney to represent you, and also determines whether to set a bond so you can be released. This hearing is followed by a determination hearing. At this hearing, you notify the court who your attorney is. The next hearing is the preliminary hearing. At this time the prosecuting attorney must prove to the court that there is sufficient evidence to take the case to trial. If the judge finds sufficient evidence to proceed, the case moves on to trial, and then to sentencing, if convicted. Sentencing can be the same day as the trial, or may be held sometime later.

Is there any way I can get the charge against me taken off my record?

As with most legal answers, it depends. Under Virginia law, the only way to get a charge "expunged" is if the charge was dismissed, you were found not guilty, or you were pardoned for the crime.

Your petition is filed in Circuit Court, and a copy is served with the Commonwealth Attorney's office. If the crime charged was a misdemeanor, the burden is on the Commonwealth to prove, if possible, that the charge should not be expunged. If the Commonwealth does not object, or fails to prove that the charge should not be expunged, the judge will enter the order and the charge will be expunged. If the crime was a felony, the burden is on you, the petitioner, to prove that the charge should be expunged. If you prove that the charge should be expunged, the judge will likewise enter the order.

Wills & Trusts

If I die without a Will, what happens to my property?

If you die without a Will, you are considered to have died intestate. An Administrator is appointed to conclude your affairs. In most cases, a family member will qualify as the Administrator. If no one qualifies, or if there is a dispute as to who will be the Administrator, the court will appoint an Administrator for you. This may or may not be someone known to you.

Once the Administrator is appointed or qualified, he or she will have to post a surety bond. The amount of the bond will depend on the value of the estate. The Administrator can then gain access to your assets, pay your final bills and distribute your property according to the laws of Virginia, not according to your preferences. In extremely rare cases, where no one comes to claim your property, your property will be forfeited to the Commonwealth of Virginia.

How can a Will help me?

A Will allows you to decide what property will go to whom. With a Will, you are also able to appoint someone as Executor to settle your estate according to the instructions found in the Will. The Will can designate the amount of the bond, if any, that the Executor will have to post. With a will, you can designate who is to receive your property, and specify as to how your property will be distributed. In addition, if you have minor children, a well drafted will should provide the name of a guardian to care for them.

What are the benefits of a Trust?

A Trust provides you with all the provisions that a Will does. You are also able to control the distribution of you estate well beyond your death. In addition to being a simpler and quicker process, the beneficiaries of your estate can avoid probate taxes. Finally, although a will must be filed with the court, a trust does not, resulting in a more private matter.

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