Monday, January 30, 2012

Points awarded
Other ways to earn

My husband cheated on me can I get alimony? He only works part time.

His lover called me and left a massage on my phone about them.

Spousal support in Virginia is not a punishment for wrongdoing by a spouse , so his adultery alone would not justify a support award. Instead, spousal support is based primarily on one party's need and the pther party's ability to pay.

Spousal support can be awarded in the Juvenile and Domestic Relations District. This court uses a statutory formula for calculating support. The statute provides:
A. There shall be a presumption in any judicial proceeding for pendente lite spousal support and maintenance under this title that the amount of the award that would result from the application of the formula set forth in this section is the correct amount of spousal support to be awarded. The court may deviate from the presumptive amount as provided in subsection D.

B. If the court is determining both an award of pendente lite spousal support and maintenance and an award of child support, the court shall first make a determination of the amount of the award of pendente lite spousal support, if any, owed by one party to the other under this section.

C. If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 28% of the payor spouse's monthly gross income and 58% of the payee spouse's monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 30% of the payor spouse's monthly gross income and 50% of the payee spouse's monthly gross income. For the purposes of this section, monthly gross income shall have the same meaning as it does in section Sec. 20-108.2, as amended.

D. The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to the parties' current financial circumstances that indicates the presumptive amount is inappropriate. (Va. Code Section 16.1-278.17)

Spousal support also can be awarded in the Circuit Court as a part of a divorce case. While there is no formula for support, there are statutory factors which the court is to consider. The statute provides:
E. The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of Sec. 20-91 or Sec. 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under Sec. 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential.

12. Other relevant factors, including the tax consequences to either party.

Virginia Code Section 20-107.1
This response does not create an attorney-client relationship and is intended for general information purposes only.

Friday, January 27, 2012

Criminal Background Check For Foster and Adoptive Parents

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents
Citation: Virginia Code § 63.2-1721

Foster parents and any adults residing in the home shall undergo background checks prior to approval. Background checks require:
  • A criminal history record check
  • A search of the central registry for any founded complaint of child abuse and neglect

Conviction of a ''barrier crime'' shall disqualify an applicant. ''Barrier crime'' includes:

  • Murder or manslaughter
  • Malicious wounding
  • Abduction for immoral purposes
  • Assaults and bodily wounding
  • Robbery, burglary, or carjacking
  • Threats of death or bodily injury
  • Felony stalking
  • Sexual assault
  • Arson
  • Drive-by shooting
  • Use of a machine gun or sawed-off shotgun in a crime of violence
  • Pandering, crimes against nature involving children, incest, or taking indecent liberties with children
  • Abuse and neglect of children or failure to secure medical attention for an injured child
  • Child pornography
  • Abuse and neglect of incapacitated adults
  • Delivery of drugs to prisoners
  • Any felony violation relating to possession or distribution of drugs

A foster home also may be disqualified for:

  • A conviction of any other felony not listed above unless 5 years have elapsed since conviction
  • A founded complaint of child abuse or neglect

A child-placing agency may approve as a foster parent an applicant who has been:

  • Convicted of not more than one misdemeanor not involving abuse, neglect, or moral turpitude of a minor, provided 10 years have elapsed following the conviction
  • Convicted of statutory burglary for breaking and entering a dwelling, home, or other structure with intent to commit larceny, who has had his or her civil rights restored by the Governor, provided 25 years have elapsed
  • Convicted of felony possession of drugs who has had his or her civil rights restored by the Governor, provided 10 years have elapsed

Guardians Ad Litem For Children

In child custody and visitation cases, it is the practice of most judges to appoint a Guardian Ad Litem (GAL). This person represents the interests of the child(ren). He or she will investigate the facts and will make a report back to the court. The report often will contain a recommendation as to the resolution of the case. The court also can refer the case to CASA (Court Appointed Special Advocates) who will do their own investigation and report.

The quality of the service provided by GALs varies widely. There are statutory requirements relating to their qualifications and duties.

Citation: Virginia Code §§ 16.1-266.1; 9.1-153

The Judicial Council of Virginia, in conjunction with the Virginia State Bar and the Virginia Bar Association, shall adopt standards for attorneys appointed as GALs. The standards shall, as far as practicable, take into consideration the following criteria:
  • License or permission to practice law in Virginia
  • Current training in the roles, responsibilities, and duties of GAL representation
  • Familiarity with the court system and general background in juvenile law
  • Demonstrated proficiency in this area of the law

The Judicial Council shall maintain a list of attorneys who are qualified to serve as GALs based upon the standards and shall make the names available to the courts. If no attorney who is on the list is reasonably available, a judge in his or her discretion, may appoint any discreet and competent attorney who is admitted to practice law in Virginia.

The Department of Criminal Justice Services shall adopt regulations governing the qualifications of advocates who shall be deemed to be criminal justice employees. An advocate must be at least age 21, and the program director shall obtain a copy of the advocate's criminal history record and information from the central registry on child abuse and neglect to certify that no records are maintained on him or her.

An advocate shall have no associations that create a conflict of interest or the appearance of such a conflict with his or her duties as an advocate. No advocate shall be assigned to a case of a child whose family has a professional or personal relationship with the advocate.

No applicant shall be assigned as an advocate until successful completion of a program of training required by regulations. The department shall set standards for both basic and ongoing training.

Specific Duties
Citation: Virginia Code § 9.1-153; Va. Sup. Ct. Rule 8:6

The advocate's duties shall include:

  • Investigating the case to which he or she is assigned to provide independent factual information to the court
  • Submitting to the court a written report of his or her investigation in compliance with the provisions of § 16.1-274
  • Upon request of the court, making recommendations as to the child's welfare
  • Monitoring the case to ensure compliance with the court's orders
  • Assisting any appointed GAL to represent the child in providing effective representation of the child's needs and best interests
  • Reporting a suspected abused or neglected child pursuant to § 63.2-1509

The advocate is not a party to the case to which he or she is assigned and shall not call witnesses or examine witnesses. The advocate shall not, with respect to the case to which he or she is assigned, provide legal counsel or advice to any person, appear as counsel in court or in proceedings that are part of the judicial process, or engage in the unauthorized practice of law. The advocate may testify if called as a witness.

The GAL shall vigorously represent the child fully protecting the child's interest and welfare. The GAL shall advise the court of the wishes of the child in any case where the wishes of the child conflict with the opinion of the GAL as to what is in the child's interest and welfare.

Domestic Assault

was arrested for hitting my boyfriend

I came home to a drunk (should have known) then I decide to leave he starts cussing me and calling my daughters very nasty names in my face I hit him. I sit to get my phone he was on top of me trying to take it. He destroyed my things and I called the police. I got arrested and have never been in trouble before. I ended up with a contusion (not sure of the spelling) and very sore. I did have this noted by the doctor that night. What happens in most cases like this?

My rule is that you should never invite the law into your home (with very few exceptions). It is far from uncommon for the one who calls the Police or Social Services to end up with the punishment.
From the facts that you provided, it appears that you both are guilty of assault. Since you were the initial aggressor, you were arrested. You can file a cross warrant against him for the assault. Go and see the Magistrate about this. In most cases like this, the charges will be dismissed if neither party has a record. The final decision, however, is up to the judge.
This response does not create an attorney-client relationship and is intended for general information purposes only.

Tuesday, January 24, 2012

What You Don't Know About Divorce Mediation

Despite divorce mediation's well-deserved reputation as a sensible alternative to fighting it out in court, we find that few people know very much about it.

Divorce mediation is not all that the public seems to think it is. This post aims to clear up some of the common misunderstandings associated with it.

Divorce mediation is for reasonable people who cannot resolve their differences by themselves.
As divorce lawyers, we regularly receive phone calls from prospective clients who explain that they and their soon-to-be exes are seeking a divorce, and that they have already reached a settlement on their own. They go on to tell us that they want to use mediation to conclude their case.

We tell them they do not need a mediator. Instead, they should be looking for a lawyer to shepherd their settlement through the legal system. Their situation does not belong in mediation because mediation helps people resolve disputes; and these callers do not have a dispute, they have a resolution of their dispute. They already have the best that mediation could ever give them. If their wish is to save time and money, their best bet is to take their settlement straight to court for a judge's approval.

Divorce mediation is an out-of-court dispute-resolution tool that helps people settle their differences sensibly and with the legal system having only minimal involvement.

It provides a structured process that minimizes the defensiveness and friction that are normally present during spousal settlement conversations. It does this by creating a non-confrontational atmosphere that encourages the spouses to put their best foot forward when they are presenting their thoughts and concerns to one another.

Mediation employs the use of a neutral and impartial third party -- a mediator -- to help the disputants reach a peaceful compromise that they can both find acceptable.

Mediators are not referees, judges, or arbitrators and they cannot make decisions regarding who is going to win or lose. Their only job is to guide the parties during their negotiations, just as air traffic controllers guide air traffic.

We must be at our very best if we hope to persuade our partner to agree to an out of court settlement that he or she is typically inclined to resist. Accomplishing this is often difficult because divorce tends to put us at our worst. This is where the mediator comes in. He or she directs the interaction and dialogue away from potential negotiation hazards and makes it possible for us to be at our best.

We have all heard of friends, family, or coworkers who have gone through divorce mediation with great success. As mediators ourselves, we certainly attest to mediating many successful divorce resolutions. However, we have our reservations about the effectiveness of mediation during the early stages of divorce.

For mediation to be successful, both disputants must be reasonable people who are motivated to negotiate a final settlement. However, this is not what usually happens during the early stages of divorce.

In the initial phase of most marital break ups, emotions often hinder the participants' ability to be reasonable. In addition, it is also very common for only one partner to be ready to divorce.
He or she wishes to begin settlement negotiations, and the other party wishes to work on saving the marriage. This difference in motivation tends to stymie the chances of mediation's success. It is extremely difficult to negotiate a price with someone who is dead set against buying the item at any cost.

The mediation clients with whom we have had successful results during the initial stages of divorce are the exceptions to the general rule. These are the extremely reasonable people with workable factual situations who are highly motivated to reach a cooperative divorce. Our role as mediator usually involves only minimal guidance to assure the couple that their settlement proposals cover all the bases and do not omit any items of importance.

Many people see mediation as an end-all, attorney-free process. However, in most instances, those with a mediated settlement still have to hire at least one attorney to process the divorce through the legal system. In addition, mediators are trained to recommend to both parties that they consult with their own attorneys before formalizing any agreement reached in mediation.

Divorce mediation is not for every couple, and it is not for every situation. However, it has no down-side and can help people save time, energy, and expense, not to mention wear and tear on the family unit.

J. Richard Kulerski and Kari L. Cornelison are partners in the Chicago area, Oak Brook, IL divorce law firm of Kulerski & Cornelison. You may find them at and at their firm's blog

Richard is the author of The Secret to a Friendly Divorce: Your Personal Guide to a Cooperative, Out-of-Court Settlement.

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