Archive for May, 2012

What is a GAL and why did the judge appoint one in my case?

Tuesday, May 15th, 2012

If you are charged with a crime, and there is a possibility that you might be sentenced to at least 6 months in jail, and you cannot afford an attorney, the Judge can appoint an attorney to represent you in that case.  This attorney is appointed to advocate on your behalf and to assist you in your defense.

The Court in Virginia can also appoint another type of attorney if your situation meets the criteria set by the court, and the Judge feels it is appropriate.

‘GAL’ stands for ‘Guardian Ad Litem’.  There are two parts to this term.  Part one is ‘Guardian’ which means someone who acts for the benefit of another, and part two is ‘Ad Litem’ which means ‘for the Lawsuit’.  So, the court may appoint someone to act for the benefit of another for the purpose of the lawsuit.  The person that is appointed by the court is called the ‘GAL’.

The court may appoint a GAL when a party to the lawsuit is incapacitated in some way.

Most of us think of incapacity as having a mental or health disability, and this is considered a physical incapacity.

Someone is also considered legally incapacitated when they are unable to attend court themselves.  This might be because they are in the military and stationed away from home.  Or perhaps the person can’t be found because none of the persons involved in the court case knows where they live now.  Or perhaps they are incarcerated.

In all of these situations, a GAL can be appointed to represent the adult who is not able to represent himself.  The role of the GAL in these cases is to make sure that the adult is treated fairly in the legal case and that any decision that is made by the court is not going to permanently put the represented person at an unfair disadvantage.

Another type of incapacity is based on age.  A person under the age of maturity, which is the age of 18 in Virginia, is also considered legally incapacitated.

If a child, under the age of 18, is charged with a crime it is possible that the court will appoint both an attorney to defend the child against the criminal charges and a GAL to look out for the best interests of the child.

Another time when the court might appoint a GAL is during a legal case regarding custody or visitation of a child.

When parents are fighting over custody and visitation of their children, the courts base their decisions on the best interests of the child.   Most of the time, the parents really do believe that what they are trying to do is in the best interest of the child.  But everyone must understand that the parent’s vision of the best interest of the child is colored by the position of that parent.  That is why the courts will often appoint a GAL to represent the best interest of the children.

The GAL does not represent either the mother or the father, and if either parent wants to have an attorney, they should retain one on their own.

The GAL  for the child has the ability, and the duty, to look at all aspects of the child’s life.  The GAL is able to talk to the child’s teacher, doctor, day-care provider and any other person that can bring input about the child’s life.  The GAL also talks with each parent and will usually do a visit to the parent’s home, generally while the child is there so the GAL can see how the child and the parent interact with each other.

If the child is old enough, and mature enough, the GAL will listen to what the child wants and take the child’s desires into consideration.  But, the GAL is not there to advocate for what the child says he/she wants.  The GAL is there to report on the situation and to make a recommendation on what is in the child’s best interest.

The GAL might provide a written report to the Judge before the trial, or the GAL report might be given as oral testimony at the trial.  In either case, the Judge will consider the GAL report as one additional piece of evidence to be considered.

The Judge is the one that makes the final determination.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Some Financial Effects of Divorce

Tuesday, May 1st, 2012

When two people are dating, they often decide to move in together for a number of reasons, and one of those reasons can be financial.  After all, why pay for two sets of living expenses (rent, electric, cable etc.) when you are spending all of your time together?  It is cheaper to combine expenses.

The opposite happens when people get divorced, but for some reason it seems to come as a surprise to people that they are not able to continue to maintain the same lifestyle that they had as a couple.

Often, the couple’s financial difficulties are one of the reasons they got into marital problems in the first place, and now that same combined income needs to pay for two separate households.

Everyone seems to understand that the ‘stuff’ to be divided at the time of a divorce includes the house, the cars, the televisions and the other tangible items.  What they often don’t understand is that debts are also considered marital ‘stuff’ that will be divided.  Debts are contracts made between parties where one side (the creditor) agrees to provide something (money) in exchange for the other side’s agreement to pay the creditor back, usually with interest.

Most of the time, the divorce will assign the debt to the person who signed this debt contract as the ‘responsible party’ for the debt.  For example, if Bob gets a credit card in his name alone, he is the ‘responsible party’ for that debt and he will probably be assigned that debt in the divorce.

If the debt is in both of their names, the divorce may assign the debt to one party, but the contract with the creditor has never been changed.  What this means is that the creditor can still file a lawsuit against both Husband and Wife to try to get repayment of the debt.

As an example, Bob and Carol were married when they applied for a credit card to cover the cost of furniture for their home and they both signed the credit card contract.  Now, Bob and Carol are divorced and that debt has been assigned by the divorce to Bob.  Bob does not make the payments on the credit card and the credit card company sues both Bob and his ex-wife Carol for repayment.  Carol will need to defend herself against that lawsuit in court so that the court can order that Carol is not to be held responsible for this particular debt.  Carol can do this herself, but she will probably hire an attorney to assist her.  If the divorce decree is worded correctly, Carol can then file suit against Bob to have him reimburse her for her legal fees.

There are also times when one or both of the parties files for protection under the Bankruptcy Code.  Again, a careful drafting of the divorce decree can help protect the other party from being held responsible for a debt that has been discharged by the other ex-spouse.

Divorce is an emotional and difficult process that can have immense and varied financial implications that should be discussed with an attorney who can help provide you the assistance and protection you need.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.