A Virginia Beach Divorce Lawyer Discusses Separate Property, Marital Property, and Hybrid Property.

A Virginia Beach Divorce Lawyer discusses separate property, marital property, and hybrid property:

Section 20-107.3 of the Code of Virginia, 1950, as amended defines “separate property,” “marital property” and “part marital and part separate property. As the Code notes, “separate property” is defined as (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) any part of marital property which may be declared separate property pursuant to court order.  Furthermore,  income received from separate property during the marriage is separate property if not attributable to the personal effort of either party and  the increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increase and then only to the extent of the increases in value attributed to such contributions.  Additionally, the personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributed thereto is to be considered marital property.

“Marital property” is defined as (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise; (ii) that part of any property classified as marital pursuant to court order or (iii) all other property acquired by each party during the marriage which is not separate property as set forth above.

Hybrid property is property that is part separate and part marital.  The hybrid property can evolve from separate property due to the personal efforts of the parties.

A Norfolk Divorce Lawyer Discusses Gifts, Bequests, and Inheritances.

Generally, Virginia’s equitable distribution statute, Section 20-107.3, includes as separate property all property acquired during the marriage by gift, bequest, descent, survivorship or gift from a person other than the spouse.

Additionally, the date the gift or inheritance is actually received is the date to be used for the classification of the property.

However, it is important to note that separate property from a gift or inheritance may change or evolve from separate property to marital property by the use and maintenance of the property.

An Obstructed View Caused By Your Auto Air Freshener May Get You In Trouble.

Can an auto air freshener block a driver’s view to justify a brief detention?  Yes.

In a recent unpublished decision by the Virginia Court of Appeals, the Court ruled that a police officer had a reasonable articulable suspicion that the driver may be in violation of Section 46.2-1054 of the Code of Virginia, 1950, as amended.  That statute essentially says that a driver may not have an obstructed view when driving his vehicle.

Unfortunately, in the recent case, the police officer stopped the driver, smelled marijuana, and recovered cocaine that fell from the driver’s pant leg during a search of the defendant.

In light of this recent case, drivers should be cautioned to refrain from using any objects that may obstruct their view.

If you are arrested following a stop based on an air freshener hanging from a rear view mirror, you should immediately contact the Norfolk traffic lawyers at Montagna Klein Camden L.L.P.  Our Norfolk and Virginia Beach criminal defense lawyers have extensive experience defending your rights.

How Long After a Divorce Decree Has Been Entered May a Norfolk Circuit Court Enter a QDRO?

After a divorce decree has been entered, can a Norfolk Circuit Court enter a Qualified Domestic Relations Order (QDRO) to create a procedural change effectuating the terms of the final divorce decree? 

Yes.  Courts always have the authority to interpret their own orders, even 21 days after entry of a divorce decree.  As long as the Norfolk Circuit Court Judge does not alter the terms of the initial decree substantively, the Judge can enter a QDRO to make it conform to the intentions of the party.

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What Are the Steps that a Norfolk Divorce Lawyer Takes in a Divorce Action?

A Norfolk divorce lawyer begins a divorce action by filing a Complaint for divorce in the Circuit Court. At least one party must be a bona fide resident and domiciliary of Virginia for six months preceding the commencement of the suit.

The venue or location of the Circuit Court for the divorce action is generally based upon preferred or permissible jurisdiction.

Permissible jurisdiction is in any Circuit Court in the Commonwealth of Virginia.

Preferred jurisdiction is where the parties last cohabited as husband and wife; at the option of the plaintiff, where the spouse resides; or if the spouse’s whereabouts are unknown or if the spouse resides out of state, where the plaintiff resides.

The defendant will generally file an Answer and/or Counterclaim.

In the Answer, the defendant will admit or deny the allegations in the plaintiff’s Answer.

 In the Counterclaim, the defendant may allege his or her facts for a divorce action.  If a Counterclaim is filed, the plaintiff will file an Answer to the Counterclaim, where he or she admits or denies the allegations in the Counterclaim.

To have jurisdiction over the defendant in a bilateral divorce and the ability to resolve certain issues ancillary to the divorce (e.g. support or equitable distribution), the court must determine if personal jurisdiction over the defendant exists.  To obtain personal jurisdiction over the defendant, both the plaintiff and the defendant must have a physical presence before the forum court; the defendant must make a general appearance before the court through counsel; or have personal jurisdiction over the defendant by Virginia’s long arm statute.

The Virginia long arm statute is § 8.01-328.1 of the Code of Virginia, 1950, as amended.  The statute delineates when personal jurisdiction over a person may be exercised:

A.  A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s:

1.  Transacting any business in this Commonwealth;

2.  Contracting to supply services or things in this Commonwealth;

3.  Causing tortious injury by an act or omission in this Commonwealth;

4.  Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;

5.  Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when he might reasonably have expected such person to use, consume, or be affected by the goods in this Commonwealth, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth;

6.  Having an interest in, using, or possessing real property in this Commonwealth;

7.  Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting;

8.  Having (i) executed an agreement in this Commonwealth which obligates the person to pay spousal support or child support to a domiciliary of this Commonwealth, or to a person who has satisfied the residency requirements in suits for annulments or divorce for members of the armed forces or foreign service officers of the United States pursuant to § 20-97 provided proof of service of process on a nonresident party is made by a law-enforcement officer or other person authorized to serve process in the jurisdiction where the nonresident party is located, (ii) been ordered to pay spousal support or child support pursuant to an order entered by any court of competent jurisdiction in this Commonwealth having in personal jurisdiction over such person, or (iii) shown by personal conduct in this Commonwealth, as alleged by affidavit, that the person conceived or fathered a child in this Commonwealth;

9.  Having maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which grounds for divorce or separate maintenance is based, or at the time a cause of action arose for divorce or separate maintenance or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein; or

10.  Having incurred a liability for taxes, fines, penalties, interest, or other charges to any political subdivision of the Commonwealth.

Jurisdiction in subdivision 9 is valid only upon proof of service of process pursuant to § 8.01-296 on the nonresident party by a person authorized under the provisions of § 8.01-320. Jurisdiction under subdivision 8 (iii) of this subsection is valid only upon proof of personal service on a nonresident pursuant to § 8.01-320.

B.  Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth. For purposes of this subsection, “use” and “computer network” shall have the same meanings as those contained in § 18.2-152.2.

C.  When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him; however, nothing contained in this chapter shall limit, restrict or otherwise affect the jurisdiction of any court of this Commonwealth over foreign corporations which are subject to service of process pursuant to the provisions of any other statute.

After the divorce action is filed, counsel for the parties will generally engage in discovery.  Discovery might include propounding interrogatories, questions to be answered under oath; request for admissions; and depositions.

After the discovery is completed, counsel will generally set the matter for a hearing.  However, counsel will want to insure that the statutory time period has been satisfied for a divorce a vinculo matrimonii, or final divorce. If only a divorce from bed and board is obtained, the parties shall remain separated and have their persons and property protected.  But, neither party may remarry under a divorce from bed and board.

At the conclusion of the divorce hearing and if proper, the court will enter a decree of divorce.  The decree of divorce a vinculo matrimonii terminates the marriage and either party will be free to remarry.  However, counsel should advise their clients not to remarry until after 30 days have lapsed and no appeal or other pleading is filed.

Whether you are in Newport News, Virginia Beach, Norfolk or any other city in the Hampton Roads region, call the divorce lawyers of  Montagna Klein Camden to discuss your case. We can help you during this is a confusing and difficult time.

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Reasons for Divorce in Newport News

Experts say that divorce lawyer inquiries spike during January. In an effort to embrace the “new year, new you,” mentality that defines the month, many individuals make the first move toward ending a stagnant or unhappy marriage in the days and weeks after the clock strikes midnight on New Year’s Eve.

If you are considering wiping the slate of past years by filing for divorce, take the time to gather your thoughts and emotions and begin to weigh your options. These options include the grounds by which you plan to file. You can file for a divorce from bed and board (partial divorce via legal separation) or divorce from the bond of matrimony (absolute divorce) depending on your unique situation.  Here are the acceptable reasons for divorce as set forth by the Virginia State Bar.

  • Willful desertion or abandonment. If a spouse breaks off cohabitation both physically and mentally, there may be grounds for divorce from bed and board (and if the divorce continues for a year after the original separation, there may be grounds for a divorce from the bond of matrimony.) 
  • Cruelty and reasonable apprehension of bodily harm. Proof of a home life made unsafe by physical abuse.
  • “No Fault” divorce. Involves no blame on the part of either spouse. A divorce from the bond of matrimony in these cases requires one year of complete separation.
  • Adultery, sodomy or buggery. Proof of sexual acts outside of the marriage can be used as grounds for a direct divorce from the bond of matrimony.
  • Felony conviction. In the event that a spouse is convicted of a felony and confined for more than a year, the other spouse can file for a divorce from the bond of matrimony.

Though these grounds are the legal standards by which an individual looking to file for divorce should judge their personal situation, the lines are often blurred. Sound legal advice from an experienced family lawyer is necessary even in the earliest planning stages of a separation or divorce.

Whether you are in Newport News, Virginia Beach, Norfolk or any other city in the Hampton Roads region, call the divorce lawyers of  Montagna Klein Camden to discuss your case and remember 2014 as the year you started fresh.

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Speeding and Reckless Driving in Virginia Beach

Virginia law enforcement is on especially high alert for intoxicated and irresponsible drivers around the holidays. This is for good reason, as the highest number of alcohol-related vehicle accident deaths occur between Thanksgiving and New Years Eve. Even if you didn’t drive while intoxicated, you may have found yourself stuck with a speeding ticket or reckless driving ticket this season. Do you know your legal options?

Speeding

A driver is considered to be speeding anytime he or she is operating a vehicle above the posted speed limit. This means that, contrary to the “10 above rule,” you can be pulled over for going even one mile over the speed limit. Consequences for speeding can include a ticket with a fine (generally $5 for every mile over, plus court fees), demerits on your driving record, license suspension and court-ordered driver improvement classes if you are a repeat offender. Your first option in dealing with a speeding ticket is to pay the fine and comply with any other consequences.

If you believe you were falsely accused of speeding, you have the option of fighting the ticket in court. An experienced attorney can help guide you through the process of speedometer testing and other measures of providing evidence for proving innocence.

Avoid speeding by giving yourself plenty of extra time to get where you need to be (always keeping the unpredictable Virginia Beach traffic in mind). Put some music on and calmly follow the posted speed limit.

Reckless Driving

Reckless Driving is most-commonly understood as driving 20 miles over the posted speed limit or operating a vehicle in excess of 80 miles per hour. But did you know that other behaviors also qualify as reckless driving? From the Virginia DMV website:

  • Racing
  • Passing or overtaking an emergency vehicle
  • Passing a school bus
  • Passing on the crest of a hill
  • Passing two vehicles abreast
  • Driving too fast for conditions
  • Failure to give a proper signal
  • Faulty brakes/improper control
  • Driving improperly through parking lots

If you are charged with reckless driving in the state of Virginia, it is imperative that you maintain legal counsel. Consequences for your charge may include demerit points, major fines, license suspension/revocation and even jail time. Contact the Virginia Beach traffic attorneys at Montagna Klein Camden to discuss your case today. Call us toll-free at (877) 622-8100.

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Can I Modify a Previous Juvenile Court Custody Order in Virginia?

What to do if you want to modify a previous juvenile court custody order in Norfolk, Virginia Beach, Newport News or another city in Hampton Roads.

Although one generally begins a custody matter in the juvenile court by filing a petition, to modify a previous custody order, one will need to file a motion to modify the previous custody order in the juvenile courts.  Additionally, one needs to be aware that the initial ordering court will retain jurisdiction to modify its order if the child or one parent continues to reside in Virginia.  If neither a parent nor the child continues to reside in Virginia, jurisdiction is determined as if the matter was going to be originally filed in Virginia.  Thus, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) will be controlling.

Under UCCJEA, jurisdiction is generally determined if Virginia is the home state of the child or Virginia was the home state of the child within six months before  the commencement of the proceeding and the child is absent from Virginia but a parent or guardian acting as a parent continues to reside in Virginia. Furthermore, if a court from a different state fails to meet the requirements to exercise initial jurisdiction or a different state court has decided that Virginia is the proper forum and declined jurisdiction, Virginia may exercise jurisdiction over the matter.  Finally, if no other state would qualify under the UCCJEA to exercise jurisdiction or all other states who could satisfy the requirements under the UCCJEA to exercise jurisdiction have determined that Virginia is the better venue, Virginia may exercise jurisdiction over the child.

What does a juvenile or circuit court in Norfolk, Virginia Beach, Portsmouth , Newport News or other Hampton Roads city consider in modifying a child custody order?

To modify a court order for custody, the Supreme Court of Virginia opined in Keel v. Keel. 225 Va. 606, 303 S.E.2d 917 (1983) that  two simple factors be considered.  First, the courts consider whether a material change in circumstances has occurred.  Second, courts consider whether a modification of the custody situation would be in the child’s best interest.

Unfortunately, there is no clear formula to determine if a modification is in a child’s best interest.  Some factors that the Virginia Court of Appeals and the Virginia Supreme Court have noted are the preference of the child, remarriage by a parent, new employment, and death of a parent.

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When it comes to DUI, Police Officers Know the Signs

What are some of the clues that police officers are trained to observe in a stop for suspected DUI in Norfolk, Virginia Beach, Newport News or any other city or county in Virginia?

 

Trained police officers will use their senses to detect clues for driving under the influence after the initial stop.  The officers will use their sight to observe blood shot eyes, disheveled clothingpale face, or any marks or bruises.  Additionally, trained officers will observe individuals for swaying while walking, swaying while standing, leaning on objects for support, stumbling or loss of balance.

The police officer will use their hearing to listen for slurred speech, abusive language, inconsistent statements, and admissions of drinking.  Officers also listen for yelling or loud talking.

Drinking responsibly (or not drinking at all) is the best guard against getting pulled over in the first place. If you do happen to find yourself charged with driving under the influence (DUI), call or contact the experienced DUI attorneys at Montagna Klein Camden. You can’t afford to stand trial alone.

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