Davies, Barrell, Will, Lewellyn & Edwards, PLC Frequently Asked Questions
- General Litigation Frequently Asked Questions
- Collections Frequently Asked Questions
- DWI/DUI Frequently Asked Questions
- Real Estate Frequently Asked Questions
- Will, Trusts and Estates Frequently Asked Questions
- Family Law Frequently Asked Questions
- Business, Corporate, and Commercial Law Frequently Asked Questions
General Litigation Frequently Asked Questions
- What is discovery?
Discovery is a process by which you discover information that the other party has about the case. It is intended to minimize the possibility of surprises at trial and give each side sufficient information to assess the merits of the case. Failure to cooperate with discovery requests can result in significant penalties. There are several basic tools that lawyers use in discovery. Interrogatories are written questions that require the other party to provide answers in writing under oath. Requests for Admissions ask the other party to admit or deny certain facts. Each party can also request that the other side produce all documents related to the case. Finally, a deposition is a sworn statement made by a party or witness under questioning by an attorney. Depositions give each side an opportunity to see what evidence the other side will be able to produce, test how a witness will perform while testifying, and lock witnesses into one version of their stories.
A statute of limitations is a law that sets forth the maximum length of time that you can wait before initiating legal proceedings. The exact length of time depends on the circumstances of your case. It is very important to contact an attorney soon after the wrongful act. Once the statute of limitations runs out, you may lose your ability to sue.
- How can I prevent disclosure of my company’s trade secrets or other information that will hurt the business competitively?
The legal system allows a court to issue a protective order designed to protect trade secrets and other confidential information from public disclosure. A protective order generally limits the people who can view and use the protected information. It also requires that the confidential documents be destroyed or returned at the end of the trial.
Our experience with the legal system allows us to assess your situation, advise you of your options, and tell you whether it is worthwhile to pursue legal action. If you are involved with litigation, a lawyer can provide valuable expertise in planning a legal strategy, filing the necessary paperwork, interviewing witnesses, negotiating with the opposing lawyer, and representing you in court. If you are representing yourself and do not follow the proper procedures, the court may dismiss your case.Back to Top
Collections Frequently Asked Questions
The first step in removing tenants is to mail a Material Noncompliance Notice for Failure to Pay Rent. This notice informs the tenants that they have five days to make their rent payments current or the landlord will terminate the lease. After sending this letter, the landlord may file a Summons for Unlawful Detainer. On the first return on this summons, the judge can award the landlord possession of the premises and a monetary award for past-due rents. The landlord can also ask the judge for possession of the premises and set a trial date for a determination of final rents and damages, if the landlord believes that there will be damages to the property, caused by the tenant that will require repairs.
A Warrant in Debt, filed in General District Court, can be used for civil suits when the amount in question is less than $25,000.00. Suits for amounts greater than $25,000.00 must be filed in the Circuit Court. One can also file a Warrant in Debt in the Small Claims Division of the General District Court, for claims that do not exceed $5,000.00, exclusive of interest.
The Warrant in Debt should have a date and time in the upper right-hand corner. This is the date and time that this case will be heard by the court. As explained on the Warrant in Debt, you do not need to appear on that date. However, if you do not appear, judgment may be entered against you in your absence. If you would like to contest the Warrant in Debt, you must appear on the court date and then the judge may set a future date to try the case.
When you obtain a judgment, it allows you to take certain collection actions that you could not take without a judgment, such as garnishing your debtor’s wages and bank accounts. When you docket your judgment with the circuit court clerk, the judgment serves as a lien against any real property the debtor has in that jurisdiction.
After obtaining a judgment, you will want to begin collection of the money owed. As a judgment creditor, you can summons the debtor into court for interrogatories where you can ask the debtor questions about his assets, bank accounts, and employment. As a judgment creditor, you may garnish the debtor’s bank account and wages to collect on your judgment. You may also levy the debtor’s personal property to satisfy your judgment.
You will likely want to consult with an attorney to collect money or to file suit against a tenant. An attorney can ensure that all of the correct procedures are followed in order to obtain a judgment and collect money. However, attorneys are not permitted to appear in Small Claims cases. Back to Top
DWI/DUI Frequently Asked Questions
Police look for a wide variety of clues that a driver has been drinking. They include wide turns, crossing or straddling the center line, near collisions, weaving, swerving, driving too slowly, responding to traffic signals too slowly, stopping for no reason, following too closely, inconsistent turn signal use, driving without lights, and alternating speeds.
Typical signs of intoxication include a flushed face; red, watery or glassy eyes; an odor of alcohol; slurred speech; fumbling for identification and insurance documents; swaggering; combative attitude; disorderly clothing; inability to understand or follow directions; and uncertainty about your location or time.
Police cannot force you to answer incriminating questions. Any incriminating information you give may hurt your criminal case. You may simply say you prefer to speak with an attorney before answering any questions, although you have no right to speak with an attorney at that point. Your apparent “lack of cooperation” may aggravate the police officer.
You are not legally required to take any field sobriety tests. You may choose to simply say no and not offer the officer any additional evidence of intoxication.
Not necessarily. If an officer fails to inform you for your 5th Amendment right to remain silent or a “Miranda” warning after he arrests you, prosecutors will likely not be permitted to use any statements you made following your arrest in a trial on the matter. That does not, however, mean that you cannot be prosecuted or that a dismissal will occur. A Miranda violation potentially suppresses statements; however, it does not necessarily cause an action to be dismissed.
It is possible, but not advisable, for you to represent yourself if you are charged with driving while intoxicated. DWI/DUI defense is very complex, constantly changing, and a conviction or plea of guilty comes with increasingly serious consequences. Procedural, evidentiary, constitutional, sentencing and administrative license issues can present challenges for those inexperienced in DWI/DUI defense. A qualified DWI/DUI attorney can take a host of beneficial actions, including reviewing the case for defects, suppressing evidence, compelling discovery of such things as calibration and maintenance records for the breath machine, having blood samples independently analyzed, negotiating for a lesser charge, or reduced sentence, and obtaining expert testimony for trial, among other things.
Multiple factors can impact the cost of your case – whether your charge is a misdemeanor or felony, whether you have any prior arrests, convictions, or prior pleas of guilty, whether an expert is needed, and if the case will be resolved by plea bargain or trial. We will be happy to discuss our fees with you during your initial meeting with an attorney. Back to Top
Real Estate Frequently Asked Questions
Title insurance is a policy that insures the title of real estate. Historically, attorneys examined title to real estate for purchasers and/or lenders and issued their opinion as to the status. It is now more commonplace to have this function performed by a title insurance company which has the title examined and issues a binder or commitment. The binder will contain the requirements which must be satisfied prior to issuance of the final policy. These requirements routinely require the payoff and release of existing deeds of trust, execution and recordation of a deed conveying the property to the purchaser, and the payment of recordation taxes and any delinquent real estate taxes. The binder will also contain a list of exceptions which will appear in the final policy. These exceptions may include routine matters such as utilities easements, restrictive covenants, and shared rights of way. However, it is important to have the binder reviewed by a qualified attorney to determine whether any of the exceptions would adversely affect the purchaser’s intended use of the property. For example, covenants may contain a restriction prohibiting any commercial use of the property. Covenants may also require that any improvements constructed on the property be approved by an architectural review committee. Following the closing and satisfaction of all of the requirements, a title insurance policy will be issued to the purchaser and/or lender. In the event that a title problem is discovered after the closing which was not accepted in the title policy, the property owner can submit a claim to the title insurance company. The insurance company is then required to either correct the reported defect, or to compensate the owner and/or lender for the claim.
As their names suggest, an owner’s title insurance policy provides protection for the owner of real estate, while the lender’s title insurance policy provides protection for a lender that holds a deed of trust on the owner’s property. Almost all lenders require a lender’s title insurance policy for loans secured by real estate. Owner’s title insurance is usually acquired at the time of the initial purchase of the property. Owner’s title insurance is valid for an indefinite period of time and can often be helpful upon the sale of the property if the new purchaser’s title examination reveals exceptions that are not accepted in the existing owner’s policy. A lender’s policy expires upon the payoff of the loan. A new policy is required for each new loan, refinance, or home equity loan. However, title insurance companies usually provide a discount known as a simultaneous issue premium if owner’s title insurance and lender’s title insurance are both acquired at the same time. A reissue rate discount is also available for a purchaser who has obtained owner’s title insurance previously when he refinances or obtains a home equity line of credit.
The closing, or settlement, is a process by which purchase and sale documents and/or loan documents are executed by the parties, the transfer is recorded, and the funds are collected and disbursed. In the case of a purchase, the purchaser and seller are frequently represented by separate representatives, attorneys or settlement agents. The parties execute their respective documents with their representative. The attorneys, or settlement agents, then meet to exchange documents, record the deed, and disburse the proceeds. Although the actual documentation varies from closing to closing, the seller is generally required to sign a deed transferring the property to the purchaser, provide information that allows the settlement agent to report the sale to the Internal Revenue Service, an owner’s affidavit confirming certain matters relating to title, and a HUD-1 Settlement Statement which reflects all of the costs associated with the transaction. The purchaser generally executes the loan documents provided by the purchaser’s lender and a HUD-1 Settlement Statement reflecting the purchaser’s costs and expenses. In addition, the purchaser is required to provide his settlement agent with the necessary funds to complete the transaction which should be in the form of a certified or cashiers’ check or wired funds.
Virginia law allows a settlement to be conducted by an attorney or by a lay settlement company that has obtained approval to serve in that capacity under the terms of the Consumer Real Estate Protection Act (CRESPA). However, only a licensed attorney can provide legal advice. A lay settlement agent attempting to provide legal advice could be found guilty of the crime known as unauthorized practice of law. The preparation of legal documents for a closing and the explanation of the terms of those documents have been ruled to be the practice of law. Accordingly, a lay settlement agent or title insurance company cannot draft legal documents to be executed at the closing nor explain the content of documents prepared by others. Only a licensed attorney can provide those services. The attorney who is hired by either the purchaser or the seller represents his clients’ interest only. The attorney can explain exceptions that might appear in the title insurance binder, give advice as to how title to the real estate should be held, and explain terms contained in the loan documents, such as prepayment penalties, balloon payments, and adjustable rate interest features. The attorney can obtain title insurance for his client through an independent title insurance company. Back to Top
Will, Trusts and Estates Frequently Asked Questions
A power of attorney is when you designate an agent to act on your behalf. There are various types of powers of attorney. A general power of attorney grants the agent that you select full authority to act on your behalf. It is usually important for handling financial affairs and addressing business matters. A healthcare power of attorney is also an effective tool. It selects agents to make medical decisions on your behalf when you are not capable of making those decisions personally. For example, it allows the individual designated to hire and fire physicians, to move you to an alternative healthcare facility, or arrange for therapy or long term care. There are a variety of limited special powers of attorney where an agent is appointed for a limited or specific purpose. A good example of this is when you are out of town and need someone to sign documents for a real estate closing. It also can have a specific time limit.
A will is a signed document that disposes of a person’s property upon his or her death. Virginia recognizes a handwritten will, known as a holographic will. It is a will that is entirely in the handwriting of the person making the will and is signed and dated. Most people prefer to have a will prepared by an attorney who can ensure that their wishes are carried out. The attorney can provide advice on how assets should be held or transferred. The focus is trying to minimize the cost to the estate and to the beneficiaries and minimize the impact of taxes. Usually the easiest way to sign a will is to have it done in the law office where the maker signs the will, there are witnesses and all signatures are notarized. The intent is to have a document that can be put to record or probated on an individual’s death. The attorney will also review with you how assets should be held effectively recommending the use of payable on death or transfer on death accounts at banks or financial institutions. Wills are not final until the death of the maker of the will. An individual may change the terms contained in the will prior to death. Also, a provision is included in the will in most cases which allows for the maker of the will to establish a list of personal property that can be attached to the will and effectively provides for the transfer of designated items of personal property to specific individuals.
If an individual dies without a will, state law determines who will receive your property and who will administer your estate. As a general rule, Virginia’s intestate succession law would leave your property to your surviving spouse. If your spouse has predeceased you, the property would go to your children. If the children are from a prior marriage or relationship, it is important for you to do a will that protects both your spouse and your children. The Court will give preference to your closest relative to serve as the administrator and handle the closing of the estate. The general order of succession is your spouse, children, parents, and then siblings. As previously explained, if you leave a spouse and children by a prior marriage, the spouse only receives a one-third interest and the children get two-thirds. This can sometimes create conflict. Wills allow you to specify your beneficiaries, designate an executor, appoint a guardian for minor children, which is subject to the approval of the Court, create a trust to hold property for minor beneficiaries, and save taxes and administration expenses.
A living trust is a document primarily designed to avoid the probate process. It is also used to keep assets from becoming public information. When a will is probated or put to record, that information becomes public. The individual creates a revocable (changeable) trust in which the individual serves as the trustee and the individual is his or her own beneficiary during the individual’s lifetime. The trust generally contains language designating beneficiaries and a successor trustee who would manage the property on the individual’s death. The individual would do a will that would “pour over” any undesignated assets into the trust for management. For a living trust to be effective, all the individual’s assets, including real estate, bank accounts, stocks, bonds, and vehicles should be titled in the name of the trust; however, there are some assets which pass with survivorship that do not have to be included in the living trust. A disadvantage of a trust is that the administration and the transfer of assets to the trust is sometimes cumbersome and the cost of the preparation of the documents and the transfer of the assets often exceeds the costs associated with probating the will. This is especially true for small or medium-size estates. Since the benefits and disadvantages vary between individuals, it is important to obtain the advice of an attorney before determining to use a revocable or living trust. Back to Top
Family Law Frequently Asked Questions
Generally, you can file for a no-fault divorce if you have been living separate and apart from your spouse for the required period of time (six months if you and your spouse have signed a property settlement agreement and there are no children under 18; one year if there are minor children or you do not have a property settlement agreement).
Child support is based on a set of guidelines created by the Virginia legislature. The main factors taken into consideration for child support are (1) the gross monthly incomes of each parent, (2) the cost of child care required to enable a parent to work, and (3) the cost of providing health insurance for the child. If each parent has the child for more than ninety days per year, the amount of child support is typically reduced to reflect the additional expenses being paid by the parent who pays child support.
If you already have a child support order, the amount of support can be changed if there has been a material change in circumstances since the last order was entered. Changes such as a significant increase in income, involuntary reduction in hours worked, unavoidable unemployment, or changes in the financial needs of the child may justify a modification of child support.
"Joint custody" means that both parents are responsible for the care of the child and have the authority to make decisions concerning the child, such as health care, education, and religious upbringing. The term is also used when both parents share physical custody of the child. "Sole custody" means that one parent has the authority to make decisions concerning the child.
Virginia has adopted an equitable distribution law for dividing marital property and debts in divorce. To determine a fair division of marital property and debts Virginia law requires the following:
- that property and debts be classified as marital, separate, or part marital and part separate;
- that marital property and debts be valued
- that such marital property or debts be equitably divided based on the statutory factors in Virginia Code Section 20-107.3.
Marital property is defined as all jointly-owned property and all other property, other than separate property, acquired from the date of the marriage to the date of separation. Typical examples of marital property are:
- the marital home titled in the names of both spouses, or
- a retirement account accumulated during the marriage even if the account is only in the name of one spouse
- gifts from one spouse to the other spouse such as jewelry are marital property.
Separate property is all property acquired by either spouse before the marriage or all property acquired during the marriage by inheritance or by a gift from a source other than one's spouse. Typical examples of separate property are:
- an automobile that was given to one of the spouses by a parent and titled in the name of the receiving spouse,
- an inheritance from a family member, and cash gifts from third parties but only if such gifts and inheritances are then maintained separately from other marital property.
The third category of property is property that is part marital and part separate. The application of the law to this category of property is often complex. An experienced domestic relations attorney from DBWLE can assist you in analyzing your situation
Generally, the date of valuation of marital property is the date of the evidentiary hearing or trial. Retirement plans and marital debt are exceptions regarding the valuation date of marital property. Marital debts are valued as of the date of the separation. For example, post separation credit card charges are not marital debts unless the charges are related to some marital purpose.
Adultery is a bar to spousal support except when special findings are made. If denial or spousal support "would constitute a manifest injustice, based on the parties' respective degrees of fault during the marriage and the relative economic circumstances of the parties," a spouse who committed adultery could get it anyway.
A court generally can increase, decrease, or terminate the amount or duration of spousal support if a party can show a change in circumstances. A number of factors influence such a decision. A court, however, may not modify spousal support that was part of an agreement unless the agreement says there can be future modifications.
Generally, spousal support is deductible to the payer and taxable to the payee for Federal and state income tax purposes.
It is a common misperception that you will automatically get a reduction in your spousal support obligation when you retire. However, the duration and amount of support that you must pay depend on many factors, including the precise language in your settlement agreement or court order, your reasons for retiring, your age, your health, and your former spouse’s financial situation. It is possible for a court to require that you continue paying the same amount of support even though you have reached a normal retirement age. Therefore, it is best to plan ahead for retirement by including a provision in your settlement agreement that addresses a reduction or termination of support when you choose to retire.
The court can award you up to 50% of the marital share of any pension, 401(k) or other retirement account in your spouse's name. The marital share is the portion which was earned between your date of marriage and date of your separation from your spouse. The division of a retirement account is typically accomplished through a court order called a qualified domestic relations order (QDRO) to avoid early withdrawal penalties and treatment as a taxable distribution to your spouse.
No. A parent's obligation to pay child support is completely independent from whether he or she is visiting with the child. If the other parent is preventing you from seeing your child, you can ask the court for help in obtaining visitation, but you cannot decide to stop paying court-ordered child support to punish the other parent.
You can obtain a protective order if you have been a victim of violence, force, or a threat which results in bodily injury or places you in reasonable fear of bodily injury. A protective order may order the abuser to stop the abusive behavior, prohibit the abuser from contacting you at home, work, or by phone, order the abuser to get out of the home that you share with him or her, and provide various other relief necessary for your protection. If you have recently been the victim of abuse, contact law enforcement or the Intake Office for your local Juvenile and Domestic Relations District Court to begin the process of obtaining a protective order. The Court does not charge any fee for obtaining a protective order. Back to Top
Business, Corporate, and Commercial Law Frequently Asked Questions
An LLC (limited liability company) is a type of business ownership that combines features of a corporation and a partnership but is neither. Owners of an LLC are called members and enjoy personal protection from the debts of the LLC. This means that the personal assets of the members cannot be used to satisfy an LLC debt unless the member has signed a personal guarantee. An LLC is easier to operate as it does not require minutes or resolutions. Unlike a corporation, that can exist forever, and an LLC ceases to exist when one or more members leave either voluntarily or through death. A corporation is a separate entity from any of its owners, like an LLC, but requires more formal operation. It too protects the owners by limiting their personal liability. A corporation allows for the movement of owners into and out of ownership while still maintaining the existence of the corporation. Owners who work for the corporation are often paid as employees. LLCs and corporations have different ways to distribute profits and handle taxes. Deciding on the form of business ownership should be done after considering all implications and after consulting with your income tax advisor.
A sole proprietorship is a business fully and completely owned and represented by the owner. Business profits are taxed through the personal income tax process as personal business gains and losses. All businesses owned by one person that have not chosen to be LLCs or corporations are assumed to be sole proprietorships by the IRS. Discussion with a lawyer or accountant would help determine if this is the best form of ownership for any given business.
A partnership is a form of business ownership used when there is more than one owner. Like a sole proprietorship, the business is legally and completely represented by the partners and the partners are personally liable for the debts of the business. There are significant implications of forming a partnership, both positive and negative. There are questions of decision making, distribution of profits and losses, forms of compensation for the partners, how and under what conditions the partnership will dissolve, and what will happen to the partnership's assets upon dissolution. There is no requirement for a formal written agreement, and there are arguments for and against having a written partnership agreement. It is critical that the individuals considering a partnership take the time to address the many aspects of a partnership and lay the proper basic foundation.
A corporation is a wholly independent entity that is represented by its employees and/or Board of Directors. Owners may or may not be involved in the day-to-day operation of the business. The owners may be a small group of individuals or the corporation may be owned by members of the general public who purchase and sell their ownership (stock) on a regular basis. An S corporation is generally a smaller organization that is owned by a small group of individuals. Profits are taxed in a manner similar to a sole proprietorship or partnership. There are also significant issues related to the ability of an S corporation to raise capital through investment by outside owners. A C corporation differs from an S corporation in that it is a more complex form of organization. Profits are taxed independently from its owners and again as profits to the owners. A decision on whether or not to be an S or a C corporation should be made after careful consideration of the tax and operational implications of each form with the advice of your tax advisor. Back to Top