The end of a marriage is frequently a sad, painful and difficult time. For military spouses, the complexities of military divorce are compounded due to the intricate details and difficult fact patterns surrounding military life and military pay and benefits. Military divorces, however, do not have to be any more painful and daunting than civilian divorces. It is important for military spouses to understand some of the basics of military divorce in order to protect their rights and transition out of the marriage as smoothly as possible.

As many stories on the matter often discuss, there are three items that repeatedly come up in military divorces: kids, pensions and spousal support. Military lifestyle and the way military personnel are paid and receive benefits all play into each of these issues. For spouses navigating a military divorce, each one of these issues will need to be discussed and decided.

Military Divorce & Child Custody

If a military marriage produced children, a parenting plan will have to be established, as well as child custody and child support. In many military families pre-divorce, one spouse has taken care of the children while the other has been deployed for duty. In these cases, especially if the military spouse is still on active duty, and is often deployed, child custody may not be an issue because a judge would likely award the stay-at-home spouse either primary or sole custody.

Additionally, the issues of child support in these cases may be more readily determinable considering that one spouse will primarily care for the children and need funds from the other to do so. It is important to note that a judge would always look to the best interests of the children in signing final orders for a parenting plan and child support. Not considered is the best interests of either spouse, or what she or he simply thinks is fair.

If the child is located overseas, or the spouse has been deployed for a lengthy amount of time, additional issues may arise in establishing child support, custody, and a parenting plan. For example, if a child has resided in Germany habitually, then a German court would have jurisdiction over the child, not a Virginia Court, even if the child is a U.S. citizen and born in Virginia.

Spousal Support Issues in Military Divorces

The second item that often comes up in military divorces is spousal support. In military marriages, one spouse often stays at home while the other spouse is either deployed or is training or studying. Frequent domestic or international moves, and the grueling schedule of a military spouse, also contribute to one spouse’s unemployment status. For this reason, a military spouse may be required to pay spousal support until the other spouse can finish his or her education and become gainfully employed.

Military Pensions After Divorce

Lastly, and perhaps trickiest, is the issue of the military pension. Pensions vary in value, but it is important to understand exactly how much is at stake when decided how it will factor into property division.  Service members may have a Roth IRA and Thrift Savings Plan that will need to be taken into consideration during the divorce, as well as a military retirement pension. Under the Uniform Services Former Spouses Protection Act, military pensions are treated as marital property, to which non-military spouses are entitled to one-half if the marriage lasted for 10 years. Of course, it is important to note that the pension plan, like most things in a divorce, is up for negotiation between the parties.

Kids, spousal support and pensions, while frequently flagged, are by no means the only issues to be worked out in a military divorce. If you are planning to get a military divorce, you should seek out the assistance of an experienced military divorce attorney, who can fully help you understand your rights and what you are entitled to. Contact the experienced attorneys at Garrett Law Group, PLC today for a confidential consultation.

Domestic violence issues and the consequences of protective orders affect military members as well as civilians. Protective orders based on domestic violence charges are, however, addressed differently in the military and civilian courts. The consequences of a domestic violence protective order issued against a member of the military can have professional repercussions, including the loss of a commission and dismissal from the armed forces.

The issuance of a Military Protective Order (MPO) will not prevent a Virginia civilian court from also issuing its own protective order due to domestic violence. A civilian court may issue an Emergency Protective Order (EPO) the same day that it is filed and notify a military member’s command within 24-48 hours. After an EPO is issued, the civilian court will schedule a hearing where the EPO may be converted to a Permanent Protective Order (PPO) which may be in effect for up to two years.

A protective order, both EPO and PPO, includes orders from the Court which mandate that an individual not possess, buy or transport any firearms or ammunition. The Court may also order that a person sell, surrender or make other arrangements for any firearms that they currently have in their possession. Protective orders generally do not make exceptions for armed security guards, members of law enforcement or military members.

If you have been charged with domestic assault in Virginia Beach or anywhere else in the Hampton Roads area, or are currently subject to a civilian protective order, a domestic violence lawyer can help reduce the ramifications and protect your career. Call now for free consultation: (757) 422-4646.

On October 2nd, the federal government shutdown as a result of Congress’ inability to pass a federal budget. National parks closed, federal agencies shut down, and roughly 800,000 federal employees were told to stay home. Yet while the paychecks have stopped arriving, the bills have not. One such cost for which many furloughed employees must account is child support payments. But should a parent be required to continue to meet his or her child support obligations if they’re no longer receiving income? What happens when the other parent is promoted? If a parent wishes to decrease his or her child support obligation – or increase the other parent’s obligation – he or she must go to court and seek a modification.

During a divorce in Virginia, a judge determines what the non-custodial parent is obligated to contribute in order for the other parent to provide for the child. The monetary amount is determined in proportion to a parent’s gross monthly income. The court may also consider a variety of other factors, including a parent’s financial obligation to other family members and whether the child has any special medical needs.

When Can a Child Support Order be Modified?

If a parent in Virginia wants to change a child support order, either parent can seek a modification of the child support order in court. The parent will be required to show that a change in circumstances occurred that makes the obligation unfair. Since the original order is normally proportional to a parent’s monthly income, either a significant increase or decrease in income can serve as a basis to modify an existing child support order.

Suppose, for example, a father in Virginia makes $4,000 a month as a landscaper and pays $553 a month in child support payments. Several years later, the father starts a successful business selling landscaping equipment to the National Park Service. He now makes $10,000 a month, yet still only pays $553 a month in child support. This significant change in income would likely provide a basis for the mother to seek a modification of the child support order and increase the father’s child support obligation.

A decrease in income can also provide a basis for modification. Let’s suppose that the judge in the example above grants that mother's motion for a modification of a child support order. The father is now required to pay the mother $1,014 a month. The father continues to pay this new amount until – on October 2, 2013 – the federal government closes. Unable to sell his landscaping equipment to the National Park Service and pay his employees, the father closes his business and returns to his landscaping job and monthly income of $4,000. This significant decrease in his monthly income would likely constitute a change in circumstances sufficient to support an order for a modification of child support. However, if one parent quits, refuses to take another job, or intentionally takes a lower-paying job, the court may not agree to modify the existing child support order.

If you have experienced a change in circumstances and would like to modify your child support obligation, or the obligation of the other parent, contact one of our experienced family law attorneys. Together, we will work to achieve the modification that you desire.

The law against unreasonable searches and seizures is often cited in criminal defense cases. The Fourth Amendment to the United States Constitution prohibits police and other authorities from unreasonable search and seizure, and mandates that warrants to search and seize evidence may not be issued unless there is probable cause for such issuance. A person’s Fourth Amendment rights are very relevant when he or she is stopped in his or her vehicle, and charged with drug possession crimes or other criminal charges after police search the vehicle. It is important for Virginia residents to understand their rights when it comes to a vehicle search and the seizure of drug evidence.

Why are Fourth Amendment Rights Important?

When a person is facing a conviction on a drug possession charge, he or she may wonder why search and seizure laws really matter. After all, the police have already taken the evidence.  The answer is that under the Exclusionary Rule evidence that is obtained by law enforcement in violation of the Fourth Amendment is excluded from being presented at trial. The bottom line is, even if a person is charged with possession of methamphetamine, and the police have seized the drugs from the person’s car or home, if the search and seizure was unlawful, the methamphetamine may be excluded from being presented at trial. Evidence of that methamphetamine would likely be a crucial element of the prosecution’s case against the defendant. Therefore, if the prosecution is unable to present the methamphetamine, the defendant may be found not guilty at trial. Additionally, the defendant’s defense attorney may be able to successfully negotiate the charges with the prosecutor in the absence of the evidence.

How do Fourth Amendment Rights Impact a Criminal Case?

At the outset, it is important to note that the Fourth Amendment only protects searches and seizures that are conducted by the state, such as by the police. If a friend or family member searches a person’s room, finds drugs and takes them to the police, the person’s Fourth Amendment rights probably have not been violated. Therefore, the prosecutor would probably be able to use the drugs as evidence at trial.

The Supreme Court established the general rule regarding privacy and search and seizure in Katz v. U.S. In that case, the Supreme Court held that the government may not conduct a search and seizure without a warrant in a place where a person has a reasonable expectation of privacy. The strongest example of a place where a person has a reasonable expectation of privacy is in his or her own home. With very few exceptions, police may not search a person's home and seize property without a warrant, or without the person's consent.

A vehicle stop may lead to a search of the vehicle, the seizure of drugs, and drug possession charges against the vehicle's owner. In these cases, there are several ways that a seasoned defense attorney may argue that the search and seizure violated the charged person's Fourth Amendment rights. For example, under Whren v. U.S., police may stop a vehicle for a minor traffic infraction (such as a broken taillight) as a pretext for investigating that vehicle, if the vehicle did, in fact,  commit the underlying infraction. Once the police have stopped the vehicle, they may argue that drugs were in plain view, and therefore they did not need a warrant to search the vehicle in order to seize the drugs. If there was no underlying reason to stop the vehicle in the first place, the evidence may be suppressed.

A police search of a person's vehicle can be a nerve-wracking experience. If the police search a vehicle and find drugs, it can be the first step to a felony record with penalties and consequences for the rest of the person’s life. Search and seizure laws are complex and require skill and experience to fully understand. If you have been charged with violating criminal laws, you should immediately seek out the assistance of an experienced attorney. An experienced attorney can review your case to see if your constitutional rights have been violated, and can defend your case in court. Contact Garrett Law Group, PLC, today for a confidential consultation.

The unofficial beginning of fall is often marked by Labor Day holiday weekend. College students move from across the country, or from their parents' homes, back to the dorms or student housing, campus bookstores are filled with students ready to purchase reading materials, and barbeques are fired up for the final cookout of the season. In the midst of all of the back-to-school and holiday chaos, however, comes a dangerous traffic situation that can be made worse by drinking, road rage, and speeding. The combination of traffic, high-stress and hurried drivers is a recipe for potential injuries and reckless driving charges.

Virginia Accidents

Hamptonroads.com reports that this year was particularly brutal in terms of highway fatalities over the Labor Day holiday weekend in Virginia. Nine people were killed in fatal car crashes over the weekend. Last year there were six deaths on Virginia roads over the holiday weekend. In addition to the deaths, Virginia State Police wrote 11,204 reckless driving tickets for a total of 2,464 motorists, and there were over 600 motor vehicle accidents throughout the state. While reports show that this year has been a less fatal year in terms of motor vehicle accidents in Virginia overall, the holiday weekend had its fair share of driving offenses.

Reckless Driving in Virginia

Reckless driving is a serious charge in Virginia, and Virginia drivers should be aware of the penalties and consequences that a reckless driving conviction can bring with it. Reckless driving, as a criminal offense, can be penalized by severe fines, license revocation, and, in some especially serious cases, imprisonment.

Under Code of Virginia 46.2-852, reckless driving is generally defined as driving a vehicle on any highway recklessly, or at a speed or in a manner so as to endanger another person or his or her property. However, in addition to this general rule, Virginia law proscribes a variety of conduct that also constitutes reckless driving. For example, a person may be charged with reckless driving if he or she drives with faulty brakes, passes at a railroad grade crossing, passes a stopped school bus, or fails to give the proper driving signals. Therefore, as a general rule, it is important to remember that reckless driving is really conduct that endangers the life or limb of another person, even if the driver is not speeding.

In addition to fines, penalties, and possible jail time, reckless driving convictions stay on a driver’s permanent driving record for a number of years. The Virginia Department of Motor Vehicles website provides a list of years that a particular reckless driving conviction will stay on a driver’s record. For example, a reckless driving charge for speeding in excess of 80 miles per hour will stay on a driver’s record for 11 years, as will most reckless driving charges. A reckless driving charge for driving more than 20 miles per hour above the posted limit will stay on a driver’s record for five years. In addition to staying on a driver’s record, demerit points are also assigned to the record for traffic convictions that occurred out of state.

Reckless driving is no joke in Virginia. Whether a driver is rushing to a class, hurrying to move, or just wants to party, he or she must remember the severe penalties and consequences that his or her driving may bring, for speeding or otherwise driving dangerously. If you have been charged with reckless driving, you should immediately speak to an experienced attorney. Contact Garrett Law Group, PLC, today for a confidential consultation.

After someone is convicted of a felony in Virginia, whether it be after entering a guilty plea or a trial, the Circuit Court judge will order a presentence report. A presentence report is prepared by a probation officer and includes various background, family, and employment information about the defendant. One of the items included in the presentence report is a calculation of sentencing guidelines.

Sentencing guidelines give a point value to several factors, including the particular charge, the defendant’s prior criminal record, and some aggravating factors such as use of a weapon and victim injury. After calculating the various factors, that score is compared to a sentencing table that has been established by the Virginia General Assembly to set a recommended sentencing range. The purported purpose of this range is to ensure that defendants convicted of similar crimes who are in similar situations receive similar treatment from the various judges and courts throughout the Commonwealth.

When judges impose sentences, they will generally suspend a portion of that sentence. They may impose a five year prison sentence and suspend four years, leaving one year to serve – the active sentence. The only legal restriction on the court for sentencing is the maximum sentence set by the statute. The sentencing guidelines recommend to the judge what that active sentence should be. While departure from the recommendation is not uncommon, judges do sentence within the guideline range in most cases. It is important to remember that sentencing guidelines are advisory only, and a sentencing judge may impose a sentence within those guidelines or depart from them either downward in favor of the defendant, or upward in favor of the Commonwealth.

When preparing for a sentencing hearing, a defense attorney should evaluate not only the presentence report and sentencing guidelines, but also things not included in that report, such as other sufferings of the defendant due to the offense, positive contributions by the defendant to the community, and their involvement in the community through church, business or civic organizations.

A sentencing hearing is the opportunity for a criminal attorney to show the defendant in a more positive light that just that of a convicted felon. If you have been charged with a criminal offense in Hampton Roads, VA, you should contact an experienced Virginia Beach defense lawyer to help you.

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Virginia law allows a judge the discretion to allow individuals sentenced for a misdemeanor or traffic violation to serve any jail sentence on weekends or other non-consecutive days so as to allow the defendant to maintain employment. Routinely, judges have also allowed those convicted of felonies this opportunity, provided the sentence was relatively short (usually 90 days or less).

Attorney General Ken Cuccinelli has issued an opinion indicating judges, under the language of the statute, are not permitted to offer weekend or non-consecutive days to individuals convicted of a felony. Virginia Beach Sheriff Ken Stolle has indicated that he will advise the half a dozen inmates in the Virginia Beach jail they will have one week to make arrangements to serve the balance of their sentence straight through.

The new policy in Virginia Beach will result in some individual convicted of non-violent felonies, such as a third or subsequent DUI, petit larceny third or subsequent offense, drug possession, or destruction of property if over a certain amount of damage, will be required to serve any sentence straight through.

If you or a family member is currently affected by the new guidelines and needs to file a motion to reconsider, or if you have been charged with a felony in Virginia Beach, contact our office today for a free consultation. (757) 422-4646. Our Virginia Beach criminal attorneys are available 24/7/365 to answer your questions.

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Contemplating a divorce can be a stressful situation under the most normal of situations. Trying to file for a divorce when your spouse has abandoned the relationship and you don’t know where they are certainly adds to that anxiety.

While most divorces are anything but civil, a divorce case is referred to as a “civil” matter and is governed by the Virginia Rules of Civil Procedure. Unlike a criminal case where the defendant is required to be personally notified of legal action against them, a civil case can be initiated and based on other less reliable notice to the other party. After filing for divorce, you may notify your spouse by leaving official notice with some other resident of their home, posting the notice on the front door of their residence, publishing notice in the newspaper, and in some cases, by certified mail.

When you do not know the whereabouts of your spouse, the most common procedure is to publish a notice in a local paper of common circulation. Contrary to what you might think, this is not necessarily the daily local newspaper. The various local courts have established publications they accept for notification by publication. You will need to contact the clerk’s office or a divorce attorney for more information on your jurisdiction.

Before a court will accept service by publication in your divorce case, you will have to prove that you have exercises due diligence in locating your spouse. Simply stating that you have not heard from them in some time is not sufficient. You may establish the foundation by contacting your spouse’s family, employer or friends. In addition, you may want to check any social media websites such as Facebook or Twitter. Also, you may try sending them a letter to their last known address where the letter may be forwarded to them or returned to you with notice of a new address or simply “not found”.

If you are looking to file for divorce in Virginia Beach, please feel free to contact our divorce lawyers for more information. Our Virginia Beach family law attorneys will be happy to discuss various methods of service to begin your divorce procedure. (757) 422-0195. Our phones are answered 24/7/365.

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The Virginia Code defines abduction as the unauthorized holding or transporting of someone against their will by force, threat, intimidation, or deception. It doesn't require years of law school to be able to recognize abduction, also referred to as kidnapping, when a victim is tied up, gagged, blindfolded, thrown in the trunk of a car and carried off to be ransomed. These acts certainly fit the legal definition of abduction under Virginia criminal law; but many other situations not so obvious to the casual viewer are also considered kidnapping and carry the same penalty – up to twenty years in Virginia State Prison.

A non-violent abduction charge could be filed against someone who uses trickery or deception in order to coerce the victim who may otherwise be cooperative. For instance, impersonating a police officer by flashing a blue strobe light in order to entice a motorist to pull over is guilty of abduction. A homeowner who threatens their housekeeper to report them to Immigration and Customs Enforcement (ICE) unless they work overtime may be charged with abduction. During a lover’s spat if one holds the purse and driver’s license of their estranged to keep her from driving away may be charged with abduction.

There are other non-violent situations where no actual force is used against someone, but force is implied. For instance, a passenger in a moving vehicle who demands to be let out and the driver refuses to stop the car; the driver may be charged with kidnapping. Also, under Virginia law, there is no requirement that the victim be held for a particular time period. The abduction is completed at the instant the victim's movement is curtailed.

A common non-violent abduction offense involved parental kidnapping. Parental kidnapping usually involves little to no coercion or force; most cases involve a complicit, and often willing, victim. The parent may be charged with abduction simply by not returning the child to the custodial parent or guardian. Similarly, abduction may be charged in cases involving young lovers when one is kept from their parents, or when a runaway child who is harbored against the will of their parents.

If you or a family member is charged with kidnapping in Virginia Beach, you should contact a criminal defense attorney who is experienced in abduction cases. Our criminal attorneys will advise you on a proper course of action, plan an aggressive defense, and may be able to negotiate a reduction of the charge or dismissal altogether. (757) 422-4646. Calls answered 24/7/365.

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Child custody issues are the most emotionally challenging of all family law cases. Outside of cases of abuse or other harm to the children, under Virginia law, each parent is entitled to a meaningful, nurturing relationship with their children. There are things you can do to enhance your chances to prevail in court in matters involving decisions on primary physical custody and visitation schedules as well as modification to previously decided issues.

One of the easiest things to do is to keep a log or journal detailing your involvement in your children’s lives, or the other parent’s lack of involvement. You should also consider this documentation even if no litigation is yet pending. Being able to provide your child custody lawyer with a lengthy, detailed journal may be a major advantage in your child custody or visitation case.

When keeping a journal, be sure to note things such as visitations, noting when you showed up, how the exchange was handled by the other parent, and if there were any witnesses present. Keep notes concerning phone calls to your children when they are in the custody of the other parent. Maintain accurate child support and spousal support noting any late or under payments.

In addition, you should be well informed about your children’s daily activities and be sure to note your involvement in your child’s school and extracurricular activities. Attend parent-teacher conferences, doctor’s visits, school plays, baseball games and piano recitals. The more involved you are with your child, the more a court will agree to grant you more time with them.

If you are a party to case of child custody and visitation in Virginia Beach, contact our office today for a consultation. (757) 422-0195. Our Virginia Beach family law attorneys are available to answer your questions 24/7/365.

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