Posts Tagged ‘jail’

Can we just agree to change the child support amount?

Monday, December 2nd, 2013

I had a person in my office recently who said that he and the children’s mother had agreed to reduce the amount of child support he had to pay because he was laid off from his old job and his new job didn’t pay as much.  They even had a document that said the amount would be reduced, and it was notarized.  He thought their agreement would cancel the court order.

And then she took him to court for non-payment and he was charged with failure to comply with an order of the court which included a possible jail sentence of up to one year.

First of all, when the Judge issues that piece of paper telling you what to do… it is not a suggestion….it is not an example….it is not an ‘if you want to’ or ‘if you feel like it’.  It is an ORDER.  That means you have to do it or face consequences.

Secondly, having a document notarized does not make it more ‘legal’ than having a document that isn’t notarized.  Most of the time, a notarization just means that the person signing the document produced identification saying they were the person who’s name was on the document.  This may keep your girlfriend from signing your wife’s name, but it doesn’t make the document legal.

What they should have done was to go to court to file a motion to amend child support due to a material change in circumstances.  His change in employment status would probably have met the criteria for a material change, especially if both of them agreed.  Then the court would have recalculated the child support payment from the date of the petition.  You can also provide the court with a ‘Consent Order’ that says you agree to an amount even if that amount is different from the amount that would be calculated by the statutory guidelines.

Sure it takes time out of your day to go to court to get the amount changed….but it is probably worth it when you consider the amount of time you might be spending going to court on a show cause….and the possibility of going to jail!

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.

Were you furloughed, and can’t afford to pay child support?

Saturday, October 5th, 2013

I get a lot of questions about child support obligations and the fact that the person ordered to make the payments has had his or her income reduced because of ___________ (there are lots of reasons, including the recent furloughs).

The most common reaction is that people just decide to not pay because they don’t have the money.  This is a BAD decision.

In Virginia, if you don’t make your child support payments, you can end up in jail for up to 12 months.  That’s right, you can go to jail for not making your child support payments.   And guess what happens to your child support obligation while you’re in jail?  It just keeps on going and your past due balance keeps getting bigger and interest on that past due balance keeps accumulating.  The hole just keeps getting bigger.

You can also have any tax refunds diverted to make a payment toward child support.  And your driver’s license may be suspended.

All in all, it is not a pleasant experience.

So, what are you supposed to do if you’ve been furloughed, fired, or laid off, or you just can’t find a job and your income has been reduced?

First of all, you should know how child support is calculated to see if your reduced income will make a difference.  I wrote a post here about how to calculate child support and  here about where to find a calculator online.

If it looks like your reduced income will make a difference, you should contact the Juvenile and Domestic Relations  District (JDR)  court where the last court order was entered that told you to make child support payments.  Ask them about the procedure for submitting a petition to amend child support.

If your case was done through the Division of Child Support Enforcement (DCSE), then go to the office where your case is being handled and ask for a reconsideration and recalculation.

If your child support obligation was set during a divorce proceeding, you need to check the final decree of divorce to see if the matters concerning child support have been transferred to the JDR court.

It is sometimes confusing, so it might be a good idea to at least have a consultation with an attorney about what to do.  We often have people come into the office for a consultation and we are able to give them enough information for them to complete the process on their own.

You also want to be sure to make some sort of payment on your child support even if you can’t make the entire payment each month.  This shows good faith, and it will also help minimize the past due amount that is being charged interest.

What you do NOT want to do is just ignore the fact that your income has been reduced and you can not make your payments.

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.

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.

Reckless Driving in Virginia

Saturday, June 11th, 2011

Have you been charged with Reckless Driving?

Reckless Driving in Virginia is more than a glorified speeding ticket.  It is a class 1 misdemeanor that can result in up to 12 months in jail and a fine of $2500!

That’s right!  Reckless Driving in Virginia is a CRIME that will remain on your record FOREVER.

The judge will probably not order the maximum penalty for a first offense Reckless Driving charge.  However, there is a really good chance of receiving a hefty fine and a suspension of your driving privileges.  Regardless of the other conditions, the part of the guilty verdict that results in the finding of guilt of a crime remains.

Why is this important?  I had a potential client call me because she was trying to rent an apartment in Florida and they did not approve her application because her name came up when they did a criminal background check.  Yep…it was the Reckless Driving ticket she got 5 years before that showed up as a ‘criminal conviction’ with really no other information explaining that it was for driving at excessive speed.  Unfortunately, there isn’t a lot we can do except try to get the records to explain that this was a speeding matter and not something that most of us think of as ‘more criminal’ in nature.  By the time we could arrange all of this, the apartment was no longer available, but at least the Potential Client has the information for the next time this happens.

So, what is Reckless Driving?  Reckless Driving is driving at any speed that is in excess of 20 miles over the posted speed limit OR driving at a speed in excess of 80 MPH (regardless of the posted speed limit) OR any driving action that is perceived by the officer to be driving in a manner so as to endanger the life, limb, or property of any person.

When they raised the speed limit on most of the interstates in Virginia to 70 MPH, they did not change the limit for Reckless Driving.  I know most people think you can go 10 miles over the speed limit and not get caught, but this is something you should really be aware of.   (As a side note, I’ve been in court when people were found guilty of going 4 miles over the posted speed limit.  After all, it was technically over the posted limit.)

The bottom line is to take a ticket for Reckless Driving very seriously.  I would suggest that you consider the ticket for Reckless Driving as being the same as being arrested for any other crime.

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.

What if child support was not paid?

Monday, March 28th, 2011

The order to pay child support is just like any other court order, it needs to be obeyed!

If the paying parent has not paid as directed in the order, the receiving parent can go to the court and file an ‘Order to Show Cause’ (which is shorthand for an ‘Order to show cause why you should not be held in contempt of court for failing to follow an order of the court’).

If there is a good excuse for not paying the support, the court may allow the paying parent extra time to make up the back payments.  If there isn’t a good excuse for not paying the support, the court can send the ‘supposed to be paying’ parent to jail.  Sometimes it might be for a weekend or two, but I’ve seen cases where the judge has sent someone to jail for 6 months or a year.

I also hear people tell me that they are owed thousands of dollars in back child support, but now that the child is 18, they think there is nothing they can do.

I don’t know about all states, but in Virginia unpaid child support creates a judgment that can be enforced by the courts and there really isn’t a limit as to how long the receiving parent can file against the parent that was supposed to pay.  I’ve seen cases where the ‘child’ is 40 years old and the ‘supposed to be paying’ parent was brought to court for failing to pay and he was ordered to pay now or go to jail.

UPDATE! The preceding paragraph was true at the time this post was originally written.  However there was a change to the law in November 2011 and there is now a 20 year statute of limitations on the unpaid child support obligations.  You can read about it here.

The moral of this story?  Pay your child support!