“I’ve been clean and sober for 8 years, my parents sent me to rehab after I graduated  from high school, college, and law school. Don’t ever give up on your kids.” These were the words spoken to me by the prosecutor in the City of Richmond as we left the court room after my son’s criminal case for possession almost 10 years ago. My son has found his way and remained clean and sober since that time.

I often find myself working with families in the same situation our family found itself in December 2002. One of our babies was in jail with several criminal charges pending. What to do?  How can we best help our child?  It is one of a parent’s worst nightmares.

You have the full range of emotions, anger, fear, shame, guilt, blame. You go back and forth between wanted to kill them or give them a hug. Neither extreme is right or wrong. Both are real.

So how can this happen to a good family who has done everything they can to properly love and raise their children?   If I had those answers I would have my own TV show and be the next Dr. Phil. What I do know without question is that our children will make bad choices. Before you say not mine, realize they already have made bad choices, you just don’t know it. The bad choices vary in degrees but all make them. Secondly know we are in the middle of an epidemic of substance abuse in our country. A recent study from Columbia University found that 60% of incoming college freshman nationally have some form of process addiction. This includes not only the usual suspects of drugs and alcohol, but also eating disorders, gambling and a multitude of other pain and stress management behaviors.

Playing the shame or blame game is not productive. I spend a lot of time in many consults counseling the parents on action steps which are productive and helpful in dealing with the family crisis resulting from the arrest. The approach will vary from a hug to a kick in the butt. Every criminal case, like every child, is different. The families need to strike a balance between only carrots or only sticks. Both are needed in proper amounts. We did not bond our son out of the Richmond City jail until he agreed to go to inpatient rehab. That was a very difficult choice but it was the right one. His experience in the Richmond City jail gave him the right motivation to do the hard work of rehabilitation.

Every parent wants to take full credit for the good things their children do. Taking full blame and having the shame and guilt for the poor choices is the other side of the same coin. Both are wrong. Granted the bundle of joy has your DNA but they also have free will to make choices. As a result parents should not take too much credit, nor likewise take too much blame.

I hope and pray no one reading this will experience the trauma of having your son or daughter make the kind of bad choice that lands them in jail with criminal charges. But if you do know that you are not unique. The majority of my criminal clients from Chesterfield, Henrico, Richmond or Powhatan are young people from good families who have made bad choices.

Once you have decided that probate of the estate of a loved one is necessary, what do you do next? 

First, you must decide who will serve as executor (if the decedent has died with a will) or administrator (if the decedent has died without a will).  For guidance, you should first review the decedent’s will.  Most wills will include a provision which appoints a particular person or particular people as executor.  If the person who is appointed in the will does not wish to serve, there is the ability for someone else to serve as executor.  However, in most jurisdictions, you will need to have the person who was appointed sign a document indicating that he or she declines to serve.  If the decedent died without a will, you will need to consult the relevant sections of the Code of Virginia to determine who may serve as administrator.

Second, you will need to go to the probate (or wills and estates) department of the circuit court of the city or county in which the decedent was residing at the time of death to qualify as personal representative (the general term for an executor or an administrator).  Most probate departments require you to make an appointment, though you can usually get in fairly quickly.  When you attend this appointment, you will need to bring with you a list of the decedent’s assets, how they were titled, and their value as of the date of his or her death.  You will also need to bring sufficient funds with you to pay any probate tax and fees.

Once you qualify as personal representative, you should immediately begin the task of collecting the decedent’s assets and identifying the decedent’s debts.  As personal representative, you will be responsible for maintaining the decedent’s assets (with some exceptions) and paying the decedent’s debts (again, with some exceptions) until the estate is closed.  If you have any questions about how to do this, you should absolutely consult with an attorney working in the area of estate administration because, as personal representative, you could be held personally liable for any mistakes made in the administration of the estate. 

Probate is the process by which the assets of a person who has died (i.e., the “decedent”) are distributed to his or her heirs or beneficiaries and the debts of the decedent are satisfied by the decedent’s executor (if the decedent dies with a will) or the decedent’s administrator (if the decedent dies without a will).

Probate may be necessary if the decedent has died with a will (i.e., the decedent has died “testate”).  But, it may also be necessary if the decedent has died without a will (i.e., the decedent has died “intestate”).  How the decedent’s assets are held, the type of assets he or she had, and the value of his or her assets at the time of death will all impact whether probate is necessary.

If a loved one has passed away and you are unsure whether probate is necessary, you should consult with an attorney.  To get the most out of your meeting with the attorney, you should bring with you as much information you have regarding the decedent’s assets.

I think our firm does a better job than most in trying to keep our clients’ legal costs down, and in being sympathetic to the notion that individuals do not have unlimited funds with which to resolve their legal troubles.  Still, as with any firm, we do occasionally have clients who conclude their representation with us being dissatisfied with the magnitude of their legal bill.  Here are some of the tips these folks were told (likely on multiple occasions), but probably did not heed:

1.         It is most attorneys’ protocol to charge for each in-person meeting, phone call, or email by the hour.  While we always encourage our clients to keep us informed of recent developments and like to hear from you, it is not cost-efficient to provide your attorney with a play-by-play of your life.  

2.         Throughout the course of your case, your attorney is going to ask you to gather certain information and to respond to certain documents.  To the extent you can do so timely and completely, you will keep your legal fees down.  If we have to ask you for certain information and documentation more than once, or flat-out do your “homework” for you, your legal bill will almost certainly be higher than if you had actively participated in your own case.

3.         When you are providing us with information and documentation, provide it to us in the most organized, straightforward manner possible.  If your attorney has to spend time organizing or decoding your submission before she can analyze or work with it, she will likely have to charge you for her time spent doing so.

4.         If your attorney contacts you by telephone but is not able to reach you, call her back!  Don’t wait until she calls you back again.  Also, if you miss her when returning her phone call, leave a number at which you can be reached and include some times at which you will be available at this number.  Remember: while your case is very important, your attorney has a number of other clients and may not always be in the office and available to speak with you. 

5.         If your attorney says that she is going to provide you with a response or a document to review, or call you back, by a certain date or time, give her sufficient time to do so before you do your follow-up.  It is one thing to call for a status update if you have not heard from your attorney in awhile (it does happen!), but it is another to call every hour on the hour, especially when the deadline set by your attorney has not yet passed.  Remember: typically phone calls to your attorney (or her assistant) are billed by the hour.

In the end, please keep in mind that, contrary to popular belief, we attorneys do not wish to run up your legal bills.  In fact, it is difficult for many of us (myself included) to ask a client for more money because we know that finances are tight.  As a result, do us all a favor, and try to follow our advice so as to keep your legal costs down.  In the end, we’ll all be thankful!   

In my last post, I described a list of potential avenues to consider when seeking to preserve or obtain evidence which might corroborate that a spouse is cheating.  In that post, I also tried to emphasize that any evidence-gathering should be done lawfully.  After all, while striving to corroborate one crime (yes, adultery is a crime under Virginia law, even though it is very seldom prosecuted), we don’t want a client or potential client to commit another one.  What follows are some points to consider to “keep it legal:”

1.         It is lawful for you to duplicate your own cell phone records.  Accordingly, if you and your spouse have a joint cell phone account or his or her cell phone is on your account, you can lawfully copy the records.  You can also lawfully copy records from his or her separate account if they are left lying around or are stored somewhere in your jointly-owned house.  

2.         It is lawful for you to duplicate emails that are left open on a family computer.  Accordingly, if your spouse leaves his or her incriminating emails up on the screen, they are fair game.  The same is true if your spouse has previously shared his or her password for their account with you.

3.         It is lawful for you to duplicate the Internet search history on a family computer.

4.         It is lawful for you to duplicate your own credit card statements.  Accordingly, if you and your spouse have a joint credit account or he or she is an authorized user on your account, you can lawfully copy the records.  Similarly, you can also copy any credit card statements from his or her separate account if they are left lying around or are stored somewhere in your jointly-owned house.

In the end, if you have questions about the legality of your methods of evidence-gathering, you should consult with an attorney before engaging in potentially unlawful behavior.  It is always better to be safe than sorry, even when dealing with such an emotional issue as a cheating spouse.  

            A Property Settlement Agreement or Separation Agreement is a contract, executed by husband and wife, in which the parties divide their marital assets and debts as well as settle any other issues arising out of the parties’ marriage. The goal of the Property Settlement Agreement is to settle as many issues as possible between the parties to avoid the time and expense of litigation. A standard Property Settlement Agreement includes the division of marital assets and debts (such as real estate, automobiles, furnishings and savings accounts) and resolution of other matters such as spousal support, child support, child custody, visitation rights, and health insurance coverage.                       

           An attorney should prepare the Property Settlement Agreement to ensure that all matters are properly addressed and the legal terminology is accurate. If the parties cannot reach an amicable settlement of all issues, whatever issues remain unresolved will be decided by a judge after depositions of the parties and their witnesses have been taken.

In May, I posted a blog in which I discussed buying real estate with a cohabiting partner.  (If you have not yet read it, it is certainly not too late!  Just scroll back through the previous blog posts, making sure to stop on any others that interest you along the way!)  In that post, I set out a number of issues that, I believe, should be considered before the property is purchased, including what will happen with the real estate if the relationship ends.  This month, after assisting several clients who are in this position, I feel it is time to discuss in more detail what happens if and when the relationship does end and two people are “stuck” owning property together. 

In a perfect world, the two owners would sit down and reach an agreement as to the disposition of the property. One owner might agree to buy out the other owner’s interest in the property for a fair and equitable price.  Another option would be for the property to be immediately placed on the market for sale, and, once the property is sold, the resulting net proceeds of sale would then be divided between the two owners.  Of course, if the second option is chosen by the owners, an agreement will need to be reached as to how the expenses associated with the real estate (including, but not limited to, any mortgages, utilities, insurance, and taxes) will be paid while the property is on the market.  The owners will also need to reach an agreement as to which owner, if any, will reside at the property until closing on the sale.  With either of these options, cooperation between the owners will be absolutely necessary in order to accomplish the goal of disposing of the property.  

Unfortunately, though, we do not live in a perfect world and the two owners are not always able to cooperate with one another.  As a result, I am often asked to assist one owner of a piece of real estate in forcing the disposition of the real estate. If two unmarried people own real estate together, and their relationship ends, and they cannot agree as to what to do with the property, it will be necessary to file a partition suit with the circuit court of the county or city in which the real estate is located.  This will enable the petitioning party (i.e., one owner of the real estate) to request that the Court order the real estate to be physically divided, if that is practicably possible, or, if that is not practicable, to order that the real estate be sold and the proceeds of sale be divided among the owners.   During the course of the proceeding, it may be necessary for one or both of the parties to the lawsuit to obtain an appraisal of the real estate, or to obtain the assistance of other professionals or experts, depending upon the type of property and the particular circumstances of the case.

Of course, partition suits cost money…and, the more professionals who are involved, the more expensive the litigation is likely to be.  As a result, I always encourage potential clients to first approach the other owner in an effort to work out the disposition of the real estate before he or she files suit.

Even good people and their children sometimes find themselves having difficult discussions with the police, or worse under arrest.  So what to do?  Let’s look at some of the more common situations that occur with DUI.

What should I do when I see the flashing lights on the car behind me? 

Carefully pull over and be polite in your interactions with the officer. If you have been drinking or high, things will only get worse if you act like a jerk. Judges always ask the officers how the person acted.  It is much better when the officer says the person was polite and cooperative. That is also a critical factor when I am trying to get the best deal possible with the prosecutor.  He or she always speaks to the police officer before committing to any plea agreement.

On a preventive note, if you are going to be out drinking after 11:30 p.m., have a designated driver. The designated driver should have nothing at all to drink. I have had too many clients who said they didn’t have that much to drink because they were the designated driver yet blew a .11 on the breath test.  He or she thought being the designated driver would earn a break. Granted, the client was less impaired than the friends being driven, but he or she was still impaired. There are no points for good intentions if you are driving impaired.

The police look for any reason to pull you from 11:30 p.m. to daybreak. They know at that time of night there is an 80% chance the driver is impaired. That is why they will look for expired tag and inspection stickers, or burned-out lights. They simply want probable cause for a stop. Once an officer has stopped you and smells alcohol or pot in the car, he or she can begin the field sobriety test and other things needed to gather the evidence for an arrest.

Another urban myth is that you can beat the charge if you refuse to take the blood or breathe test, but these are not required for a conviction. If you fail the field sobriety test, you will be convicted. If you refuse to take the test, you will be charged, and the charge carries penalties of up to 6 months in jail, a large fine, and a suspended operator’s license.

Should I agree to a search of my car? 

There is no good answer that question. If you are asking the question, you are already screwed because you are holding or have something in the car you are not supposed to. If you refuse, the police will either impound the car if they arrest you and get a search warrant or simply search to do an inventory of the vehicle’s contents because they are responsible for a vehicle’s contents when it is impounded. If they can’t arrest you at the scene but think you have some form of contraband in the car, they can detain you until they can get a search warrant. So either way they find the stuff, and you are screwed. Before you drink away from home, know the potential consequences.

Pursuant to Section 16.1-279.1 of the Code of Virginia, one spouse may seek protection from the other in the appropriate Juvenile and Domestic Relations District Court when there has been an act of family abuse, and when it is necessary to protect the health and safety of the person seeking the protective order. Family abuse is defined as “any act involving violence, force, or threat, including, but not limited to, any forceful detention, which results in bodily injury or places one in reasonable apprehension of bodily injury and which is committed against such person’s family or household member.”

However, the definition of a “family or household member” also includes “any individual who cohabits or who, within the previous twelve months, cohabited with the person, and any children of either of them residing in the same home with the person.” As a result, a cohabiting partner and his or her children by the other partner may obtain a protective order which, among other things, may prohibit further acts of family abuse, prohibit contact between the parties, grants possession of the residence occupied by the parties to the exclusion of the other, require the other to provide suitable alternate housing for the other, and/or may order the partner to participate in treatment, counseling, or other programs as the Court deems fit.  In this way, cohabiting partners enjoy some of the protections of married individuals.

        When someone is considering a separation or divorce, he or she should consult an attorney who specializes in domestic relations law. The state bar referral service can assist people by providing the names of local attorneys who specialize in domestic relations matters. Most attorneys, including our attorneys, charge a fee for an initial consultation. Further, attorneys generally ask for an advanced fee and/or retainer when they are hired to represent a client for a specific case. This practice is customary, although the amount of the advanced fee to retain the attorney will vary from attorney to attorney.            

       As the divorce action proceeds each month, the client’s legal fees are totaled, and the sum is deducted from the original advanced fee. This process continues until the fee has been depleted. Then the client is generally asked to provide an additional advanced fee and/or pay for the legal services each month in full until the case is completed. Without question, divorce litigation can be very costly, but the counsel of a good attorney in a divorce action is vital.             

       Legal representation is highly advisable, even if only for advice concerning a no-fault divorce. Everyone needs to understand what his or her rights and responsibilities are when a marriage is ending.