Family Law

We are thrilled to announce that thanks to your incredible support and votes, we have won the Silver Place in Best Family Law Firm Southside Coastal Virginia Reader's Choice, published in July/August 2024 issue. This recognition means the world to us and serves as a testament to our commitment to excellence.

We extend our heartfelt gratitude to each and every one of you who took the time to vote and support us. Your loyalty and trust inspire us every day.

Here's to many more successes together!

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In a divorce, a couple will have to divide assets, debts, and property, and decide who should keep items of personal property. In court, all property in Virginia is categorized so that it can be assessed throughout the distribution process. Every object in an estate is typically categorized as separate, marital, or hybrid, and the court evaluates the property according to the respective spouses’ past ownership or contributions to the marriage. You can better comprehend divorce procedures by being aware of Virginia’s property laws and the way the courts see the marriage itself in regard to the property.

Which Things Are Considered Personal Property?

In the course of a marriage, a couple often combine their premarital possessions and gains personal property together. As a result, a couple must frequently treat the following as personal property when dividing this property through an agreement or legal process:

1. Vehicles. Automobiles, trucks, boats, motorbikes, trailers, off-road vehicles and other “toys” fall under this category.
2. Furniture, Electronics, and Household Goods. These are examples of personal property that should be contemplated in any division of assets.
3. Exquisite Collections. This applies to any collection of items, such as wine, currency, artwork, or antiques. This comprises unique items that were presented as gifts to both spouses, possibly as part of an anniversary or wedding celebration. Gifts can be a tricky category, and depending on the circumstances, may or may not fall under the category of marital property.

The Classification of Personal Property by Virginia Courts

Because Virginia is a “equitable distribution” state, a court will distribute property according to its interpretation of what is fair, which may or may not be equal. In other words, Virginia is not a “50/50” state. Property is therefore not always divided equally. In determining equitable distribution, a court takes into account the circumstances surrounding the acquisition of the property. Property will often be categorized by Virginia courts into one of three broad groups:

1. Separate Property

This can be defined as property acquired before the marriage or after the date of separation. A retirement account will probably be considered separate property if one spouse, for instance, had the account before to the marriage and did not make contributions to that account during the marriage. Courts cannot divide property that is not separate.

2. Marital Property

Both spouses acquire marital property together over the course of their marriage. For example, a house bought during the marriage will probably be classified as marital property regardless of whether the title is in one or both names. The court may decide how to split property that is mandated to be shared fairly.

What About Pets As Marital Property?

There isn’t much to argue about if you purchased your dog or cat before getting married; you are the pet’s original owner and may take it with you. Your spouse has no rights to your pet since it is not marital property. However, it is possible one party may take issue with a large amount of money that was spent on the pet during the marriage, such as surgery, which can be taken into account by a court. But like other marital property, like as the house, bank accounts, pensions, retirement accounts, and automobiles, if the pet was bought or otherwise obtained during the marriage, it is regarded as marital property and is subject to equitable (fair) division. Virginia is not one of the states that treats pets like children, like California and Illinois, where a court can grant custody of a pet to one of the parties.

3. Hybrid Property

Acquiring hybrid property requires using both individual and married finances. For instance, if one spouse owned a car alone prior to marriage but her partner made non-financial or financial contributions to its upkeep and care throughout the marriage, the court may consider the car to be hybrid property.

We can help you with deciding how your property is divided.

At the Law Offices of Daniel J Miller, we recognize that separating personal property after a divorce can be a complex and often an emotional procedure. If you have any questions, our experienced team of divorce attorneys is available to provide you with reliable legal assistance. To discuss your case in more detail, contact us here.

Attending a Virginia family court hearing has its own set of guidelines and best practices. Key strategies to meet the court’s expectations include, but are not limited to, being well-prepared, turning in all paperwork on time and in full, communicating openly with the court, and showing up for court on time. You may make sure you have the best chance of winning your case by adhering to these procedures. But a question that frequently remains unanswered is – “How should I dress for court?”

Family Court Etiquette: Presenting Your Best Self During Court Proceedings

You will probably need to appear in Virginia Family Court if you are having a divorce, adopting a child, or have legal issues regarding paternity, child custody, and support. Usually, one of the parties files a petition to start a family law lawsuit, stating their version of events and the remedy they are seeking. Following filing, the petition is served to both parties, and a preliminary hearing is typically set. In general, we advise clients to take the following actions:

1. Arrive early for court: Being late for court is the last thing you want to happen since court judges do not appreciate lack of punctuality of the parties of a case.
2. Dress modestly: It is recommended to dress professionally to honor the court. Clothes must be presentable and clean. If you want to win your case, you should dress as professionally as you can. At the very least, you must wear shoes and a shirt in the courtroom. Generally speaking, clothing should be devoid of holes, tears, and stains. To ensure you have enough time to get dressed appropriately and find the stuff you need, wash and iron your clothes the night before. Furthermore, using scissors to trim any slack threads can significantly alter the way your entire ensemble looks.
3. Keep your kids at home, don’t get them to court: Generally speaking, the court does not appreciate parents bringing their kids to the court, especially if they are very young.
4. Leave your phone in the car or turn it off: Judges have a common aversion to mobile phones being used or mobile phones ringing in the court.
5. Preserve civility: Talk gently and control your emotions. Serious consequences may result from failing to do so.

Is it permissible to wear military uniforms in Virginia during criminal and/or family law court proceedings?

There is no specific prohibition under any statutes for military personnel in to not wear their military uniform while attending criminal court proceedings in their uniforms. Military service members may choose to wear their uniforms for suitable events, such as court appearances. However, it’s important that you ask your command how they would like you to present yourself on your court date.

What is not allowed in the courthouse?

The following items are prohibited inside most courthouses:

• Weapons of any kind, including knives and firearms;
• Electronics, including cellphones, camera and recording devices;
• Chemical agents; and
• Liquids (excluding baby formula and hand sanitizers size 2 ounces or less).
   

*Small lockers may be available to rent for the day (quarters required)*

Keep in mind that how you dress affects how you feel about the justice system. Respect the judicial system in Virginia when you appear in court, whether you are dressed in civilian clothes or a military uniform.

Another important strategy to increase your chances of getting a good result from your hearing or case, even if you look your best, is to have a trustworthy and skilled family law attorney at your side. Our experienced family law attorneys at the Law Offices of Daniel J Miller can make sure all the necessary components of your family law case are in place so you can concentrate on looking your best in court and taking care of your family.

Our experienced family law attorneys at the Law Offices of Daniel J Miller can assist you with any family law matter, divorce, custody dispute, juvenile law difficulties, among others. Contact us here to know more.

Understanding QDROs

A Qualified Domestic Relations Order (QDRO) is a court order that grants a portion of a retirement plan participant's benefits to an alternate payee, typically a former spouse, child, or other dependent. Developing a QDRO involves several crucial steps, starting with an agreement of the parties or a final decree of the court requiring the division of a certain asset, such as a retirement plan or 401(k). The process requires precise legal documentation and careful scrutiny to ensure that the division of retirement benefits is executed according to the plan's rules and federal regulations, safeguarding the rights and interests of both the plan participant and the alternate payee.

Components of a typical QDRO include:

• Participant and Alternate Payee Information: Details about the retirement plan participant (the individual whose benefits are being divided) and the alternate payee (the individual receiving a portion of the benefits), including full names, addresses, and Social Security numbers.
• Name and Address of the Retirement Plan: Identifying the specific retirement plan from which the benefits are being divided.
• Amount or Percentage of the Participant’s Benefits: A clear statement specifying the portion of the participant's benefits to be paid to the alternate payee, which can be expressed as a fixed amount or a percentage.
• Payment Duration and Commencement: Terms dictating the duration for which the payments will be made (e.g., until the alternate payee's death or remarriage) and the starting date of these payments.
• Method of Payment Calculation: Instructions on how the payment amounts will be calculated, which may vary depending on the type of retirement plan.
• Tax Treatment: Guidelines on how the payments will be taxed to the alternate payee.
• Rights of the Alternate Payee: Specifications on the alternate payee’s rights under the plan, including participation in any plan benefits or options, as well as details on how their interests are protected if the plan participant attempts to make changes to the retirement plan.
• Death of the Participant: Provisions in the event of the participant's death, including whether the alternate payee will continue to receive benefits and if so, in what form.

What Is the Impact of QDROs on Retirement Plan Participants?

The impact of QDROs on a participant's retirement plan can be substantial and varies between the short-term and long-term. In the short term, the division of assets through a QDRO immediately reduces the total value of the participant's retirement plan account, affecting their current savings trajectory and potentially altering their retirement planning strategy. It's crucial for participants to reassess their retirement goals and savings plans to accommodate this decrease in assets.

In the long term, the effect of a QDRO can extend beyond the immediate financial implications. Participants may need to increase their retirement contributions to compensate for the divided assets or potentially delay their retirement to ensure their savings are sufficient to meet their future needs. This could impact the investment strategy of the remaining retirement plan funds, necessitating a reassessment of risk tolerance and investment goals to ensure they align with the participant's retirement timeline and financial objectives.

Tax implications stemming from QDROs are pivotal for both parties involved to understand. The individual receiving the retirement plan assets (the alternate payee) is generally responsible for taxes on the distributions, which can be significant depending on the amount received and their tax bracket. However, if the distribution from the QDRO is rolled over into another qualified retirement account, such as an IRA, taxes can be deferred until the funds are withdrawn, potentially allowing for tax-efficient growth.

For the original plan participant, the distribution made under a QDRO is not considered a taxable event, offering a unique exception to the typical early withdrawal penalty. This means that while the participant’s immediate retirement plan value decreases, the distribution doesn't increase their taxable income for the year, providing a silver lining in the process of asset division.

Ways to Protect Your Retirement Assets

Protecting retirement assets in the face of a QDRO involves strategic planning and action both before and during divorce. One proactive approach is the prenuptial or postnuptial agreement, specifying the division of retirement assets in the event of a divorce, thus providing clarity and potentially mitigating disputes.

Another critical step is maintaining open communication with legal and financial advisors to ensure that the QDRO terms do not unfavorably impact one's retirement plans more than necessary. It’s essential for the plan participant to review and understand their retirement plan’s specific rules and regulations, as these can significantly influence the outcome of the QDRO. Additionally, considering alternatives such as offering other assets in place of retirement funds, when possible, can help preserve the retirement account's integrity.

Lastly, after the QDRO is finalized, it’s pivotal to reassess and adjust the retirement savings plan, potentially increasing contributions or revising investment strategies to ensure long-term financial stability and goal achievement.

If you are looking for legal guidance during your divorce proceedings, turn to our team at The Law Offices of Daniel J. Miller. Our attorneys have experience in negotiating QDROs and can provide tailored representation for your family law needs. Call our firm today at (757) 267-4949 to learn more.

We are proud to announce that The Law Offices of Daniel J Miller received a BRONZE award in Virginia Best Of Winners 2023 for Virginia Beach Family Law category! 

Click here to view the full publication: Virginia Best of Winners 2023

Paternity can provide countless benefits to fathers, mothers, and children alike. In this comprehensive blog post, we will delve into the intricate process of paternity establishment in the state of Virginia.

In this post, we will explore the various methods available for determining paternity in situations when a child is already born or unborn. By gaining a deeper understanding of this process, individuals can make informed decisions for their families.

What Is Paternity?

Paternity refers to the legal determination of the biological father of a child. Establishing paternity not only involves the inclusion of the father's name on the child's birth certificate but also entails granting the father legal responsibility and rights towards the child.

How Is the Paternity of a Child Determined?

There are several ways to establish paternity in Virginia, including:

Acknowledgment of Paternity

The most convenient place to sign the Acknowledgement of Paternity (AOP) is at the hospital before the mother and child are discharged. This service is provided free of charge by all birthing hospitals. To complete the process, the father needs to present a valid photo ID to the birth registrar before signing the form.

If parents are not able to establish paternity at the hospital, parents can sign an AOP form with the Virginia Department of Health’s Division of Vital Records, local health department clinics, local departments of social services, and local child support offices.

Genetic Testing

Another option to determine genetic testing is through DNA testing. In cases where paternity is contested or there is uncertainty regarding the father's identity, genetic testing can provide clarity. Either the court or Division of Child Support Enforcement (DCSE), if you have a case with them, will coordinate the testing for the child, mother, and alleged father.

If the parties reside in different areas, their scheduling may be done separately in their respective locations. If the testing process is arranged by DCSE, samples will be collected by swabbing the inner cheek and conducted by a representative from DCSE's contracted laboratory. The collected samples are then sent to the laboratory for testing. The sample collection itself only takes a few minutes, and the test results are typically available within three to four weeks.

Presumption of Paternity

In Virginia, if a couple is married at the time of a child's birth, there is a legal presumption that the husband is the father. However, this presumption of paternity can be challenged in court if there is evidence to the contrary.

Paternity by Adoption

When a father adopts a child, he is recognized as the child's legal father.

How Is Paternity Established for an Unborn Child?

Paternity can also be established for an unborn child through genetic testing. For instance, in cases where a mother is considering adoption for her child, the father may require testing prior to birth to determine paternity.

Fortunately, advancements in non-invasive prenatal paternity testing offer options for DNA testing while pregnant. This method can be performed as early as seven weeks into pregnancy, offering an early opportunity to determine paternity without invasive procedures.

Additionally, alternative options such as amniocentesis and chorionic villus sampling (CVS) are also available.

What Happens Once Paternity Is Established?

Once paternity has been established, the father's name can be put on the child's birth certificate.

In addition, after paternity is established:

• Fathers have the ability to seek custody or visitation for their child through the courts.
• Fathers are legally responsible for providing financial and medical support for the child.

Get in Touch with Our Team

Navigating matters of paternity can be a complex and legally challenging process. If you need guidance or assistance in establishing paternity, our team at The Law Offices of Daniel J. Miller is here to help.

Whether you're a father or a mother navigating the legal terrain of paternity, our team is dedicated to assisting you in this journey and strives for a favorable outcome for you and your child.

Don't hesitate to reach out to us for the support you need. Call (757) 267-4949 or fill out our online form.

Introducing Court Reporters - What They Do and How They Help

Court reporters play an important role in legal proceedings. They use shorthand skills and special machines to document every word said in court. This ensures the accuracy of the events.

Court reporters must have a high level of accuracy in their work. This accuracy goes both ways. They must essentially learn a new language that allows them to record every word in a special shorthand code. Then, they must be able to read that code back as plain English.

A record like this is extremely helpful, especially if the reporter is called in as a witness. They can read back everything that took place in court, avoiding a “he said, she said” scenario that never ends.

The Role of Court Reporters in Hearings

Not only do court reporters provide a record of the proceedings, but they also help maintain a level of respect and decorum. People can become highly emotional during a family or criminal law trial, and knowing that they are being recorded can help keep them on their best behavior.

Dedicated to accuracy and professionalism, court reporters help make sure that you have access to accurate records.

Benefits of Utilizing a Court Reporter

• Court reporters record proceedings accurately and thoroughly in real-time, guaranteeing that no bits of evidence or dialogue are lost.
• They possess extensive knowledge of legal language. This helps parse out any terms, concepts, and procedures of the trial that you may not understand.
• They guarantee timely delivery of transcripts, usually between 24 to 48 hours after the trial ends. This gives you quick, easy access to records when you need them.
• They can help ensure that any outside records in your trial are stored securely, including documents and audio-visual elements. This gives you easy access to them in the future.

Finding the Right Court Reporter for Your Case

It’s easy to search for the perfect court reporter for your case. Various internet resources provide reviews from people who’ve previously worked with certain reporters. For assurance of accuracy and neutrality, check that a reporter is certified by an organization such as NCRA. Consider both their qualifications and price to choose the best reporter to meet your needs.

The Cost of Hiring a Court Reporter

Before hiring a court reporter, make sure to account for all the expenses involved. You are paying for the reporter’s time, and additional costs can include transcripts, video recordings, and other materials.

Ask all the right questions before choosing a reporter, and shop around. You want to make sure that the expense meets your needs. These costs may seem high to some, but keep in mind that extensive, on-hand records are valuable on their own. Often, they are essential for a successful outcome in your case. If you’re concerned about the cost, always check for bundle deals that might just save you money in the long run.

The Law Offices of Daniel J. Miller is here to help you with all your legal family concerns for a free consultation, call us today at (757) 267-4949 or contact us online.

After a divorce, there is nothing more frustrating than having a former spouse who refuses to follow court-mandated orders. Fortunately, there are steps you can take to hold this person responsible and ensure they comply. You can work things out with the former spouse, but most often, you must handle this situation in court

To prove anything in court, you must “show cause.” Simply put, this means providing evidence that links the defendant's actions to the allegations against them. Showing cause isn't just about proving guilt. It's about convincing a judge that the evidence clearly and logically proves the defendant's guilt.

Here are some common examples of how ex-spouses refuse to fulfill their obligations, along with ways you can show cause, proving their guilt.

Failing to Sell Marital Property

Evidence includes:

• Property listings, or lack thereof
• Advertising efforts, or lack thereof
• Communications with selling agents, or lack thereof

Failing to Pay the Marital Debt

Evidence includes:

• bank records
• credit card statements
• a detailed list of debts owed and evidence that it was not paid

Failure to Transfer Ownership of the Vehicle

Evidence includes:

• Bill of sale
• Vehicle registration
• Any other paperwork related to the purchase of the vehicle
• Spouse's credit report, showing the loan is listed under their name or jointly with yours

Failure to Pay Child Support

Evidence includes:

• Payment History
• Financial Records
• Communication Exchanges

Failure to Follow Child Custody or Visitation Orders

This could be relevant to either parent. One may fail to appear, be unreliable with pick-up and drop-off times, etc. The other could block rightful visitation times.

Evidence includes:

• Witness statements
• A detailed log of missed visitations, blocked visitations, late or early drop-offs and pick-ups, etc.

Failure to Maintain Health Support for Children

Evidence includes:

• Medical bills
• Insurance statements
• Records showing that you paid for these expenses, not the responsible party

Penalties for Failing Failure to Follow Family Court Orders in California

Failing to follow family court orders in California can result in serious penalties. The crime is charged as contempt of court.

Penalties include:

• Fines
• Loss of custody
• In some cases, jail time

When one party fails to follow a family court order, the other may file a motion in court. This is an order to show cause, where the complainant presents the evidence outlined above.

In cases of child custody and support, failing to follow court orders can result in significant penalties. For example, the negligent parent may be subject to wage garnishment, asset seizure, loss of visitation and/or custody rights, and even jail time.

Everyone involved in a divorce must take family court orders seriously. You are expected to follow them exactly as written.

If you are having difficulty complying with a family court order, you must speak with an experienced attorney right away. You can take steps to modify these orders when doing so is justified.

Alternatively, if you have a former spouse who continues to break court orders, you can also get help from a lawyer. They can help you gather the evidence you need to prove your claim. Also, they can help you phrase your claim properly, showing the judge why your accusations are valid.

The Law Offices of Daniel J. Miller can help you show cause when your former spouse fails to meet their obligations. If you need help, call our office today at (757) 267-4949 or contact us online.

Child custody cases are often viewed as two parents contesting how they try to convince the court to consider their rights and interests. But in reality, child custody cases are between three parties - the two parents and the children. Each parent is strongly encouraged to obtain their legal representative in a child custody case to argue and fight for a favorable outcome. However, children do not hire their legal representative to argue for their interests. Instead, the court-appointed Guardian ad Litem will look into a child custody case and make proper recommendations on what outcome is in the child’s best interest.

What is a Guardian ad Litem (GAL)?

The term Guardian ad Litem is translated to mean a "guardian for the lawsuit." Typically, a Guardian ad Litem are individuals, generally lawyers, that the judge of a family custody case appoints to do the following:

• Protect the rights and interests of the child;
• Conduct independent investigations and interviews;
• Provide the court with a report that analyzes the best interests of the child; and
• Participate in court hearings or mediations representing the interests of the child.

The Commonwealth of Virginia relies on the Guardian ad Litem to provide an independent recommendation to the court on what is best for their client, which is the child, which may not necessarily be what the child would want. This means that a Guardian ad Litem has to assess the family dynamics and the child's needs instead of simply taking in the child's preference.

It is essential to understand that a Guardian ad Litem only represents the child in the case and not either parent, even if the child is under the custody of one of the parents.

Why Does My Guardian ad Litem (GAL) Not Like Me?

There are numerous reasons why you might have a tense relationship with the appointed Guardian ad Litem or if you feel they might not like you or perceived not to like you. Some of the possible reasons for a challenging relationship with your Guardian ad Litem could be one of the following:

• If the GAL feels that you are not cooperating with them;
• If the GAL perceives that you do not respect their role in the child custody case.
• If the GAL determines that you are coaching your child on what to say to them or the court;
• If you send numerous texts and emails or call the GAL constantly without respecting their time or boundaries;
• If the GAL determines that you are not receptive or responsive to the needs of the child or the requests of the court; or
• If you are not prepared with the documents the GAL or the court has requested.

Should I Get Legal Counsel Even If a Guardian ad Litem (GAL) is Assigned to My Child Custody Case?

Absolutely. You should obtain legal counsel even if the court assigns a GAL to your child custody case.

In your child custody case, obtaining legal representation for your interest as a parent is vital. A Guardian ad Litem is not a lawyer that will represent your interests and rights as a parent. Instead, the court-appointed Guardian ad Litem is tasked to ensure that the rights and interests are represented solely from your child's perspective. The Guardian ad Litem will not consider the interests and rights of any parent. Hence, each parent must have a lawyer representing their respective interests. In addition, a lawyer representing your rights and interest can help you navigate how to deal with a Guardian ad Litem.

Does an Appointed Guardian ad Litem (GAL) Have Any Role in The Outcome of My Child Custody Case?

Yes, a Guardian ad Litem has a significant role in the outcome of a child custody case.

Even though a Guardian ad Litem is not a judge in your child custody case or a lawyer for the parties, they play a vital role in the child custody process and, ultimately, the case's outcome.

As noted above, a Guardian ad Litem is appointed by the court to assist them in the decision-making process by recommending what is best for the child based on the independent investigation they have conducted.