Blogs from August, 2018

DUI checkpoints, also known as sobriety checkpoints or roadblocks, are used by law enforcement to catch people who are drinking while driving and keep the roads safe. During a sobriety checkpoint, motorists are briefly detained and interviewed after which suspicious drivers are asked to perform sobriety tests.

In Virginia, these roadblocks are legal. However, there are specific rules that the police must follow when conducting DUI checkpoints. For example, the location of the checkpoint needs to be announced to the general public—either online or in the local newspaper—before a state roadblock can be established.

As drivers pass through a checkpoint, officers are prohibited from stopping every single vehicle. Rather, vehicles must be stopped according to a mathematical formula (i.e. stopping every sixth or eighth car that passes through).

Police are not allowed to ask you to step out of the vehicle unless they suspect impairment. Signs of impairment include the smell of alcohol emanating from your breath or car, glassy eyes, or slurred speech. Law enforcement needs to have probable cause for a traffic stop.

If you ever encounter a DUI checkpoint in Virginia, remember the following tips:

• Do not attempt to avoid the sobriety checkpoint – If you violate a traffic law (i.e. make an illegal U-turn or cross double yellow lines) in order to avoid a DUI checkpoint, police are permitted to stop you. Even if you legally turn off a side road, police officers might be staking out the area to pull over those attempting to avoid the roadblock.
• Show the police your driver’s license, registration, and proof of auto insurance – If you are required to stop, be polite and only show the police officer the necessary documentation.
• Say little or nothing – Avoid volunteering any additional information to the police officer. Keep in mind, any statements you make could be used against you if you are brought up on DUI charges.

If you were unfortunately caught in one of these checkpoints, do not lose hope. It is possible to either get your entire case dismissed or your charges reduced with the help of an experienced criminal defense attorney. A DUI lawyer will fight to help you avoid these serious penalties.

Contact The Law Offices of Daniel J. Miller and speak with our attorney today.

After a divorce is finalized, it is not uncommon for a divorced individual to get hitched once again a short time later. According to the U.S. Census Bureau, approximately half of all Americans remarry within five years of divorce.

How Can I Obtain Spousal Support in Virginia?

You must file a Petition for Spousal Support with the Juvenile and Domestic Relations Court in the county where your spouse resides.

There are two types of spousal support orders:

1. A temporary order. A temporary spousal support order will remain in place while the court finalizes the divorce the alimony case is associated with.
2. A final order. A court can issue a final order that remains in place after the divorce is finalized.

After filing the petition, the parties have two choices:

1. Draft an alimony agreement. If the parties agree on the need for spousal support (and how much should be administered), they can draft an agreement together detailing the terms for the spousal support arrangement.
2. Attend a hearing and receive an order from a judge. If the parties disagree on terms for spousal support, they can attend a hearing in court. The parties will present evidence for their cases, after which the court will make a final judgment.

But how does remarriage affect an existing divorce agreement—especially in regard to alimony and child support?

How Remarriage Impacts Alimony in Virginia

If the supported spouse remarries in Virginia, alimony will automatically end. However, this only applies to monthly and periodic payments of spousal support. In cases where a divorce order requires a lump sum payment, remarriage does not terminate alimony.

When it comes to cohabitation—a live-in relationship of at least one year or more where the partners act like they’re married—a judge will not terminate alimony automatically. A paying spouse’s support obligation may be lowered if the court decides that a supported spouse’s financial need is reduced or eliminated due to cohabitation.

Alimony After Remarriage

On the other hand, the remarriage of the paying spouse rarely alters his/her alimony obligation. But if the paying spouse’s new marital obligations make support an ex-spouse difficult, it is possible to seek modification of alimony payments in court.

A judge will decide whether to alter or keep alimony the same after looking at the finances of both parties.

How Remarriage Impacts Child Support in Virginia

When a supported spouse remarries, the court will not consider the new spouse’s income when calculating child support from a previous marriage. A judge will only decide child support based only on the respective incomes of each parent of the child—even if more income is available to the child due to their stepparent’s financial assistance.

If a paying spouse remarries and has a new child, it is possible to adjust child support payments. “Actual monetary support for other family members” is one of the factors considered by the court—and a new child can fall into this category. However, a change is child support payments doesn’t automatically happen when a new child arrives. It is only a factor in modifying a child support order.

If you are interested in modifying a current alimony or child support order in Virginia, contact The Law Offices of Daniel J. Miller and speak with our Virginia Beach family law attorney today.

Pets are an important part of the family unit, providing happiness and comfort to each and every member. Although animals can enrich our lives, they can also be the center of a hotly contested dispute when a couple decides to divorce. Similar to a child custody dispute, it can be an emotional and stressful battle.

In recent years, pet owners have asked the court to determine ownership and custody of their pets. In fact, several states have also proposed laws to provide judges with guidance on pet visitation and dividing pet-related expenses.

Under Virginia law, pets are property and are subject to division by the Court, just like a vehicle, furniture, or any other item. The Courts, under Virginia Code 20-107.3, will do a two-part inquiry. The first question is whether the family pet is marital or separate property. So if the pet was adopted, purchased, or received as a gift prior to the marriage the pet would be separate property and that individual would likely prevail in maintaining the pet's custody.

In a divorce case all marital property—property acquired during the marriage—is divided equitably between the parties. If the pet was purchased during the marriage, it must be valued and given to one party or the other as part of property division.

When it comes to determining who gets ownership of the family pet, a judge may consider the following circumstances:

• When the pet was adopted – If one spouse owned the pet prior to the marriage, the pet may be viewed as separate property.
• The primary caretaker of the animal – If one spouse handles most of the pet’s daily needs (i.e. food, grooming, exercise, healthcare, etc.), then the judge may decide that spouse is the rightful owner.
• The best living environment of the pet – A judge may look into who can provide the best environment for the pet and who has the time and money to spend caring for the animal. In most cases, who has custody of the children is ideally the best place for the pet.
• History of abuse or neglect – If there is evidence that one spouse abuses or neglects the pet, then the other spouse will be deemed the owner.

If you and your spouse both want to share custody of the pet, they can enter the specific terms of custody into a property settlement agreement. Courts can leave it up to the owners to decide how much team each spouse spends with the animal. Couples should consider divorce mediation, where a mediator can help work out an acceptable plan that takes your pet’s best interests into consideration.

For more information about property division in Virginia, contact us at The Law Offices of Daniel J. Miller today.