Virginia Code Archives - Page 2 of 3

Child Support in Virginia: What You Should Know About Upcoming Changes in the Law!

April 16, 2014 By Marc Leave a Comment

child doing math — Courtesty of www.audio-luci-store.it via flickr.com
(license link)

Our legislature has stepped up to the plate and enacted new child support laws and guidelines. The new guidelines will mark the first amendment in over 25 years. Highlighted below are two significant changes to the Virginia Child Support laws:

Child Support Guidelines

If you look at the current Virginia Child Support Guidelines statute (Va. Code 20-108.2), you will see a long table with presumptive monthly child support obligations, based on the combined monthly gross incomes of the parents–aptly titled “Schedule of Monthly Basic Child Support Obligations”.

This table will be different in July 2014 when the amended statute takes effect. If you look at the revisions (here: HB 933), you will immediately notice the differences. The most notable:

There are new minimum amounts for the lowest income range, and the support figures change depending on the number of children.
The new guidelines have specific support figures for combined gross incomes over 10,000, all the way up to 35,000.

Should you file to amend your current order based on these new child support guidelines?

Possibly! Depending on the circumstances, the new law may substantially increase or decrease the support amount in your case. We would strongly suggest that you consult with an experienced family law attorney to determine whether the new law would lead to a deviation from the current amount that is significant enough to warrant the filing of a motion to amend your support order.

Unreimbursed Medical Expenses

The current law requires that the custodial parent foot the bill for the first $250.00 in “reasonable and necessary unreimbursed medical or dental expenses” for each child who is the subject of the support order (unless the parties otherwise agree, or good cause is shown as to why this should not be the case). After the first $250.00, the parties typically divide additional unreimbursed expenses in proportion to their gross incomes. See Virginia Code 20-108.2(D).

The new law removes the $250.00 threshold. This means that, absent good cause or an agreement to the contrary, the parties will proportionately divide all reasonable and necessary unreimbursed expenses. This is a significant change for custodial parents—especially those with 2 or more kids who have currently been obligated to pay $500+ each year in unreimbursed expenses, before the other parent even becomes responsible for a portion.

Should you file to amend your current order based on this change in the law?

If you are the custodial parent and your order requires you to pay the first $250.00 of unreimbursed medical expenses, you should contact a Virginia family law attorney to discuss your options. It may be worthwhile to pursue an amendment to your order.

The Virginia trial lawyers at BoykoNapier practice family law throughout the Richmond area, including Henrico, Chesterfield, Hanover and the surrounding localities. If you are considering a review of your child support order, contact BoykoNapier today at (804) 658-3418, or contact us via email.

Grandparent’s Rights in Virginia Child Custody and Visitation Cases

December 5, 2013 By Marc Leave a Comment

grandparents and grandchild — Courtesy of surlygirl via flickr.com

It is a well known fact that grandparents are often actively and intimately involved in the lives of their grandchildren. Their roles often increase when the parents of their grandchildren are separated. Grandparents may transform into the daycare providers, character witnesses, visitation supervisors, and the list goes on.

In light of their involvement, grandparents are often concerned about the welfare of their grandchildren and ask us about their legal rights pertaining to custody and visitation. Because of the interest surrounding this topic, we felt it would be appropriate to post some general information. This post is not intended to offer legal advice. Every circumstance is unique and you should speak with an experienced family law attorney for specific advice.

Grandparents Can File Petitions for Custody and Visitation in Virginia

Virginia Code Section 16.1-241 gives Virginia Juvenile and Domestic Relations Courts jurisdiction to handle child custody and visitation matters. While the legislature has not yet set forth a statute dedicated to grandparent’s custody and visitation rights, petitions for child custody and visitation can be filed by any person with a “legitimate interest”—this phrase generally includes grandparents, stepparents, other blood relatives, among others. However, in our experience, most grandparents and other third parties are often unaware of the difficult legal hurdles they must leap in order to actually prevail on a child custody or visitation petition.

Biological Parents are Presumed to be the Best Custodians

Although grandparents and third-parties are able to file petitions for custody or visitation, the law affords the biological parents a tremendous amount of protection. The law generally presumes that the biological parents of a child are the best custodians and the best decision-makers regarding who the child should visit with.

Burden of Proof is on Grandparents

This parental presumption can be overcome in certain circumstances with compelling evidence. The grandparents will bear the heavy burden of proof and must meet that burden to succeed.

It is important to note that the burden of proof may differ depending on the type of case and the circumstances. The burden in custody cases is different from that in visitation cases. There are also often different burdens in cases when only one biological parent objects to the grandparents petition, as opposed to cases when both parents object.

In sum, grandparents and third parties are often permitted to pursue child custody and visitation in Virginia Juvenile Courts. However, if you are involved in such a case, it is important to speak with a skilled family law attorney.

The Virginia family law attorneys at BoykoNapier have experience handling grandparent and third party custody and visitation cases. We handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield and Hanover counties. If you have questions regarding child custody and visitation, or any other family law issues, contact BoykoNapier today at (804) 658-3418, or via email.

Difficulties in Divorce: Spousal Support Litigation in Virginia

October 29, 2013 By Marc Leave a Comment

Scales of Justice — Courtesy of Tim Evanson via flickr.com

It should come as no surprise that spousal support (Alimony) is often a hotly contested issue between a husband and wife during the divorce process. The primary wage earner in the family (a.k.a. the breadwinner) almost never wants to pay support, while the lower wage earner (often the homemaker) usually asks for financial assistance. This disconnect often leads to litigation.

In Virginia Circuit Courts, Judges have the express authority to award alimony to a spouse upon their request, which usually occurs incident to a divorce proceeding. Assuming that the parties are unable to reach an agreement on support, Judges will typically conduct a hearing, listen to the evidence, and then look primarily to Virginia Code Sections 20-107.1 and 20-109 to analyze the issue before reaching a decision. If you are in the midst of a divorce that involves the issue of spousal support, it is important that you review these statutes very carefully.

Note: The standards in Juvenile Court may be different. Look at Virginia Code Section 16.1-287.17:1 which sets forth a formula for temporary spousal support in Juvenile Court (somewhat similar to the child support guidelines).

Statutory Bars to Spousal Support:

Adultery – if the Court finds you have committed adultery, it is possible that you will be prohibited from getting support.
Cohabitation – if the Court finds you have resided with another in a relationship analogous to a marriage for a year, you may unable to obtain future support.
Remarriage – if the spouse receiving support remarries, it may bar future support.
Death – death of either party will usually bar future support.

Will the Judge Award Spousal Support? Arguing the Factors:

Assuming there is no statutory bar to alimony, the Judge’s decision will usually be guided by the 13 statutory factors from Virginia Code 20-107.1. While all 13 factors are important, Virginia Lawyers often focus a few key factors when analyzing whether support will be ordered:

Factor 1. “The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature”.
- Virginia Lawyers often break down this factor to two issues: Need and Ability to Pay. This suggests that requesting party must prove they have a need for support, and the requesting party must prove the other party has an ability to pay support. This issue will often be analyzed using monthly income/expense statements for both parties.
Factor 2. “The standard of living established during the marriage”.
- This factor has an impact on factor 1. Even if the primary wage earner can afford to pay support, if that payment isn’t necessary to allow the requesting party to live a similar lifestyle than a Judge may be hesitant to award support.
Factor 3. “The duration of the marriage”.
- The shorter the marriage, the more unlikely a Judge may be to award support.
Factors 9 and 12. These factors involve employment decisions and earning capacity. Issues frequently arise that involve questions about one parties efforts to obtain employment, or to earn as much as they are capable of earning.

If the Judge Awards Alimony, For How Long?

Looking at Factor 3 addressed briefly above, the length of the marriage is one of the primary issues that impacts the length of alimony payments. It is sensible to assume that longer marriages will yield longer support orders. Significant physical and mental conditions of the parties and/or their children in common can also have a significant impact on the length of support. As this article is not intended to offer legal advice, it is important to speak with a skilled Family Law Attorney to discuss the issues pertinent to your case.

If you have questions about spousal support, the experienced Family Law and Divorce attorneys at BoykoNapier can help. Our attorneys handle cases throughout Central Virginia, including Richmond, Henrico, Chesterfield and Hanover. Call us for your free consultation at (804) 658-3418 or contact us via email.

Child Custody and Visitation – Best Interest Factors

September 6, 2013 By Marc Leave a Comment

Parents and Child — Courtesy of Bill Selak via flickr.com

If you are a parent who is going through a child custody and/or visitation dispute in Virginia, it would be wise to review the statutory factors that the Judge must consider in making his or her decision. Commonly referred to as the “Best Interest Factors”, Virginia Code Section 20-124.3 is designed to help Judges make a decision that is in the best interest of the minor child who is the subject of the litigation.

The Best Interest Factors are fairly self-explanatory and most come as no surprise—relationship between parent and child, physical and mental condition of the parties, history of family abuse, etc. However, it is helpful to review the factors carefully and present evidence on each factor so that the Judge is fully aware of how that factor applies to you as a parent.

Which custody and visitation factors are the most important?

We get asked this question a lot and the simple answer is: ALL OF THEM. The Virginia Code does not present these factors with any sort of hierarchy. However, there are some factors that tend to play a larger role in certain cases.

Family Abuse Cases (factor 9):

Obviously, in cases where there is a history of family abuse, the Judge is likely to pay close attention to the details surrounding the abuse. Abuse that is proven can often make a tremendous impact on the outcome of the custody/visitation issue.

Serious Physical and/or Mental Illness (factors 1 and 2):

In cases involving a parent or child with a serious physical/mental illness, the circumstances surrounding the illness will often weigh heavily on a Judge for a variety of reasons—i.e. a child with a severe illness needs more attention than an average child; a parent with a severe illness may be unable to adequately care for their child.

Parenting Role (factor 5):

“The role that each parent has played and will play in the future, in the upbringing and care of the child”.
Courts tend to award a lot of credit to the parent who has served as the primary care provider and primary custodian for the child. We believe this is because it is that parent who usually has the strongest grasp of the child’s needs (which intertwines with factor 4). Further, the ability of the parents to serve the child’s needs in the future is particularly important.

Co-Parenting Ability (factor 6):

“The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child”.
As you can imagine, it is very common for the Court to hear evidence that one parent has unreasonably denied the other with access to and visitation with the child. In fact, this is one of the most common reasons that parents end up in custody and visitation disputes—an inability to agree on how they should share the time with their child. Courts tend to favor parents who can demonstrate an ability to communicate effectively with the other parent and, more importantly, foster that parent’s relationship with the child.

To sum things up, it is extremely important for you to review all of the statutory factors and consider how they will apply in your case. A skilled family law attorney will be of great assistance in this regard.

If you are in need of a n experienced and passionate Virginia custody and visitation attorney, call an attorney at BoykoNapier, PLLC at (804) 658-3418, or contact us via email.

Difficulties in Divorce: What is a Pendente Lite Hearing?

July 11, 2013 By Marc Leave a Comment

Country Home — Courtesy of pvdEric via flickr.com

Individuals going through divorce in Virginia will often ask themselves thousands of questions as they tread down the path of separation. One common concern that arises is, broadly speaking, TIME. Most people tense up when they hear how long it can take for a divorce to be finalized—once separation begins, a year or more is the norm.

“What do I do until then?” is an incredibly daunting thought. The “what-ifs” are bound to circle around in your head: what if my husband doesn’t provide any support; what if my wife keeps coming around my residence, or removes me from the health insurance policy . . . and so on.

Temporary Orders in Virginia Divorce Cases

While your circumstances will dictate what your best options are during a separation period (and because of that, it is important to speak with an attorney directly to determine your best course of action), it is helpful to know that you might be entitled to receive temporary relief from the Court.

Once a Divorce has been filed, you may ask for a hearing with the Court to enter a temporary order. This hearing is called a Pendente Lite hearing. This latin phrase means “pending the litigation” (per legaldictionary.com).

Thankfully, our Virginia legislature has kindly recognized that temporary relief is important. In Virginia Code Section 20-103, the legislature has given Judges the authority to make various rulings while the case is pending.

Common Pendente Lite Requests:

Temporary child and spousal support
Temporary custody of your minor children
Temporary use and possession of the marital residence
Order prohibiting the dissipation of marital assets
Order requiring a spouse to pay joint debts
Order requiring a spouse to provide health insurance coverage
Temporary award of attorney’s fees

The Court may also punish a party for contempt if they choose to disobey a Court Order while the case is pending. The purpose of this code section, and of the Pendente Lite hearing, is to provide a party with protection during what can often be a very lengthy divorce process.

If you have additional questions about Divorce, or Pendente Lite hearings, call BoykoNapier at (804) 658-3418, or contact us via email, and speak with an experienced Virginia Family Law Attorney today.

The Virginia Code – Find What You Need Online

April 30, 2013 By Marc Leave a Comment

In today’s technological world, it comes as no surprise that almost everything is online. So, it should not surprise you to learn that the entire Virginia Code, in all its glory, is online with a user-friendly, searchable database.

What is the Virginia Code?

The Virginia Code is, simply put, the laws in Virginia. The Code is the collection of statutes that the legislature has created and amended over time. These written statutes (a.k.a. “code sections”) are laws that govern our society.

If you have ever been in criminal or traffic court, you have probably heard the Judge or the clerk announce to a defendant, “You have been charged with violating Section 18.2-xxxx of the Code”. That is a reference to one statute. But there are thousands, governing everything including crime, contract, divorce, custody, probate, licensing, insurance, adoption, etc.

Why You Might Want to Look at the Virginia Code?

If you are involved in a Legal Action

Criminal or Traffic Charge – if you have been charged with a criminal or traffic offense in Virginia, you should receive a summons, warrant or indictment. On any of these documents is a code section (sometimes more than one). For example, if you have been charged with assault and battery, you should see Virginia Code Section 18.2-57. The section will describe the behavior that is prohibited and will usually specify the degree of the charge and, in some cases, the punishment range.
Civil Case – if you are involved in a civil action, the Judge may turn to the Code to find the legal standard that applies to your case. For example, in a child custody case the Court is obligated to consider certain “statutory factors” set forth in Virginia Code Section 20-124.3. The same is true for certain civil contract suits, among many other types of civil litigation.

If you are wondering whether you can bring a Legal Action

If you think you have a legal action against another, the Code may be of some assistance. Search for the issue you are having and you may find the answers you were looking for.
If you are wondering whether you should do something or not–I.E. whether a particular activity is prohibited. Reading the Virginia Code can often be any eye opening experience. There are so many things that you probably are not aware of—some of them are even criminal laws that you would not have thought existed.

How To Access the Virginia Code Online?

Visit the searchable database: Code of Virginia (http://leg1.state.va.us/000/src.htm).
Search via words and phrases (in the search term box)
- Just like you would in google (sort of). If you want to search for a couple of words/phrases, insert the word “and” inside.
- Be careful to use the exact word you want. If you want word variations, insert a “*” (i.e. “Custod*” for custodian or custody).
Search via Table of Contents
- This takes you to a list of the Titles. In this way, the statutes are nicely organized by topic. If you want Family Law, for example, it is listed next to its Title (Title 20: Domestic Relations).
- Once you are inside a particular title, you should see a list of Chapters. These are basically subtopics.
- Once you are inside a particular Chapter, you should see a list of every statute within the chapter.
Search via Popular Names
- A click on this will bring you to a list of popular legislative acts, including Uniform statutes (i.e. “Uniform Child Custody Jurisdiction and Enforcement Act”).
NOTES:
- If you are having trouble, use the search examples provided to help you reformat your search.
- READ THE ENTIRE SECTION. Don’t stop after the first paragraph. Sometimes, within a particular section, there are exceptions or additional rules that might impact your situation. So be sure to review everything–after all, if you’re spending time to look up a statute, odds are it is probably important!
- The online database will also let you review a portion of the statutes history, including amendments (click on the hyper-linked numbers at the bottom of the statute).

If you have questions about the Virginia Code, or about any legal issue you may be facing, call an experienced Virginia Trial Lawyer at BoykoNapier today at (804) 658-3418 or contact us via email. We represent clients throughout Central Virginia, including Richmond, Chesterfield, Henrico, Hanover and the surrounding localities.

DUI Investigations – A Brief Overview

April 23, 2013 By Marc Leave a Comment

Holding beer in car — Courtesy of James Cridland via flickr.com

In Virginia, if a police officer suspects you of driving under the influence (a.k.a. DUI or DWI), there are a few investigative techniques that will likely be used. This article will briefly explain these techniques, as well as a couple of issues that may arise if you are in fact arrested for DUI.

PRE-ARREST

Why Might an Officer Suspect you of DUI?

Erratic Driving – swerving, driving too slow or too fast, disregarding traffic signs
Odor of Alcohol – the officer smells alcohol when he approaches your window to talk with you
Slurred Speech – the officer concludes that you are slurring your speech when you talk to him
Admission of Drinking or Drug Use – if you admit to alcohol or drug use, the officer’s suspicion of intoxication will naturally increase
Other Reasons – bloodshot eyes, anonymous tips, officer’s personal observations, intoxication of your passengers, etc.

Questions an Officer May Ask:

If an Officer suspects that you have been consuming alcohol, you may be asked a series of questions that are likely designed to get you to confirm the officer’s suspicions.

Where are you coming from?
Where are you heading?
Have you been drinking?
Why do I smell alcohol on your breath?
How long have you been drinking?
How many drinks have you had?

These questions are also usually asked to enable the officer to examine your demeanor, your eyes (to see if they are bloodshot) and your speech (to see if it is slurred).

Field Sobriety Tests:

Once an officer suspects you of driving under the influence and has pulled you over, it is likely that you will be asked to perform field sobriety tests or “FSTs”. Officers typically tend to conduct several field sobriety tests on a subject and most are performed outside of the vehicle, on a flat surface. The officer should provide instructions before asking you to perform each test.

The type of tests range from asking you to walk a straight line, lift a leg and count, say the alphabet, and follow a pen with your eyes. It is advisable that you speak with an experienced DUI defense attorney to discuss under what circumstances you should perform these tests.

Preliminary Breath Test / “PBT”

The PBT is the breath test that an officer will often ask to give you on the side of the road. This is different from the breath test you would perform at the police station (discussed below); it is designed to tell the officer the “probable alcoholic content” in your blood. The PBT is, therefore, a common tool to give the officer probable cause to arrest you for a DUI. It may be helpful to carefully read the statute (Va. Code Section 18.2-267) and speak with an attorney.

POST-ARREST

Search of Your Vehicle

Typically done after arrest, the officer may decide to search your vehicle for additional information—items which may provide additional evidence to help in his investigation (i.e. alcohol in the vehicle, or additional contraband). Note, your vehicle may also be impounded.

Breath Test at the Station (a.k.a. “Breathalyzer”)

Often referred to as the Breathalyzer, once arrested, you will likely be taken to have your breath analyzed at the police station. In case you are interested, here are a few of the significant statutes (Va. Code Section 18.2-268.2, Va. Code Section 18.2-268.3, Va. Code Section 18.2-269) but it would be wise to speak with an attorney about this test.

Blood Test

If the breath test is unavailable, or if the suspicion is that your intoxication is based on drug use, the officer may attempt to have your blood drawn for the purpose of providing an analysis of substance levels in the blood.

Note for Commercial Drivers:

If you were operating a commercial vehicle and are suspected of drunk-driving, it would be wise to contact an attorney as different or additional rules may apply (i.e. Va. Code Section 46.2-341.25).

Please note that this article is not intended to offer legal advice as to when/if you should perform any of these tests—it is only designed to be informative as to the nature of the tests. It is advisable that you speak with an experienced DUI defense lawyer about how all of these tests may apply to you, particularly if you have a commercial driver’s license.

At BoykoNapier, our attorneys are experienced in handling drunk-driving / DUI cases throughout Central Virginia, including Richmond, Henrico, Chesterfield and Hanover. If you have a drunk-driving case, or simply have questions regarding drunk-driving, call us at (804) 658-3418 or contact us via email.

Virginia Child Support Guidelines: a Closer Look at the Ingredients

April 9, 2013 By Marc Leave a Comment

Chalkboard Calculation Math — Courtesy of Evelyn Saenz via flickr.com

In Virginia, Court-ordered Child Support amounts are typically determined through the use of Virginia’s Child Support Guidelines.

The support guidelines are a creature of statute (Va. Code Section 20-108.2) and the Court is required to presume that the guideline amount is appropriate (Va. Code Section 20-108.1).

Because the child support guidelines are so important, it is a good idea to familiarize yourself with the building blocks—the ingredients that usually provide the foundation for calculating the child support amount:

Gross Income of the Parties
- The Gross income of both parents perhaps the primary factor in determining the percentage obligation of the parties (i.e. if Dad makes 30% more than Mom, he will need to pay a higher percentage of the child support need)
- Gross income is generally considered to be all income from any source. For most people, this could mean:
  - Wages from Employment
  - Interest income
  - Unemployment income
  - Disability income (note: if a parent receives disability benefits, any sums received for a child who is the subject of child support shall be includable as well)
  - Spousal Support
  - Pension and Retirement Account distributions
  - Gifts
Number of Children in Common
- The number of minor children of the parties will obviously impact the amount of the child support obligation
Number of Children Not in Common
- If either parent has children from another relationship than they will typically be awarded a credit that offsets a portion of their gross income—the credit will depend on the number of other children or on the amount of child support they pay for the other children
Medical Insurance
- The premium expense for the minor children’s medical and dental coverage, if applicable, is considered.
- The parent who pays the expense should get a credit for the payment.
Daycare Expenses
- The daycare expense for the minor children, if applicable, is considered.
- The parent who pays the expense should get a credit for the payment.
Custodial Time
- If the non-custodial parent has at least 90 visitation days each calendar year, or if the parties have joint physical custody, the Court may use “shared support guidelines”, which calculates the child support need based on the amount of time the child is with each parent.
- If the parties have split custody (i.e. both parties each have primary custody of at least one minor child in common) the Court may use “split custody guidelines” to account for the different custodial arrangement

Take a look at a Child Support Guideline Worksheet to see how this all fits together.

If you have questions about child support, contact an experienced family law attorney at BoykoNapier today. Our attorneys represent clients throughout Central Virginia, including Richmond, Henrico, Chesterfield, Hanover and the surrounding localities. You may reach us via phone at (804) 658-3418 or via email.

Domestic Protective Orders in Virginia: Powerful and Prevalent

March 27, 2013 By Marc Leave a Comment

In Virginia, you may be entitled to a domestic protective order if:

You have been subject to “family abuse” committed by another,
You continue to be in fear, and
A protective order is necessary to prevent further abuse.

A Juvenile Court Judge, in granting a protective order, is authorized to use various remedies in favor of the person requesting the protective order. These include prohibiting contact between the parties (and the children, in some instances), granting the requesting party possession of a residence commonly occupied by both parties, and granting an order of temporary child support (read the rest of the remedies at Va. Code 16.1-279.1). Further, some of the remedies can be implemented immediately upon the approved application for an emergency protective order.

I have strong views on the domestic protective order laws in Virginia. I cannot argue against the necessity of these orders—violence in the household must not be tolerated and protection must be afforded to those in need–and I have represented many individuals who were properly in need of a protective order. However, I can say that I believe too many people get away with using the protective order as a legal tool–often, as an advantage against an opposing party in a custody or divorce battle. And it’s easy to see the benefit of obtaining a protective order: if you are seeking a divorce, a protective order could force a separation by ordering that your spouse give you temporary possession of the marital residence (not to mention de facto temporary custody of your children, among other things).

How do I know people abuse the system? I don’t. I can’t imagine people would ever willfully admit to using it as a tool–in many cases that would be considered perjury. What I can say is that I have seen many protective order affidavits that, on their face, should not even warrant a hearing. I’ve had numerous people in my office about custody issues ask me: “What if I go get a protective order?” when they are certainly not in fear of their significant other. Perhaps even worse, I have been involved in dozens (and heard about dozens more) of negotiations at protective order hearings and far too often the result is: the protective order is voluntarily dropped by the requesting party, and a temporary order of some kind is agreed upon, usually involving custody, visitation, or support. I believe that if the applicant was truly in fear for their safety at the time they filed for a protective order, they would not be so willing to let it go.

How can the Court system protect against this potential for abuse of protective order?

The legislature should step in and require:

More Information on Affidavits
More restrictive burdens of proof
Limit the definition of family abuse
Allow respondents (i.e. defending parties) to appear at preliminary protective order hearings

After all, we should be more hesitant, as a society, before we authorize a Court to strip a person of two essential freedoms—family and property.

Charged with Domestic Assault and Battery? What You Should Know about the First Offender Program

March 20, 2013 By Marc Leave a Comment

Richmond, Virginia Capital — Courtesy of Ron Cogswell via flickr.com

In Virginia, if you are charged with Domestic Assault and Battery (Virginia Code Section 18.2-57.2) and have no previous convictions for this offense you may be entitled to relief from conviction under Virginia Code Section 18.2-57.3, commonly referred to as the “First Offender Program”. We would recommend that you speak with an experienced criminal defense attorney in order to discuss the details of the program, as well as your eligibility. Here are a few quick points:

How do I get into the First Offender Program?

If you are eligible for first offender, and have been found guilty of domestic assault and battery (whether through pleading guilty, or following a trial), you can ask the Court to allow you to enter into the first offender program.
If the Court grants your request, your case will be continued for at least 2 years. You will be placed on “probation” and will be obligated to perform various tasks.

What will I be required to do during probation?

Complete an assessment/evaluation through the local probation agency and abide by the treatment/educational programs recommended by the results of such assessment/evaluation, as well as any programs the Court may require.
Frequently, you will be required to complete an anger management course.
If the defendant was under the influence of drugs or alcohol at the time of the offense, it is common for the Court or probation officer to require the defendant to undergo random drug/alcohol screens.
Make reasonable efforts to secure and/or maintain employment.
Keep the Peace and Be of Good Behavior: if you get new charges during the period of probation, you will likely violate the terms of the program.
Pay the costs of the program: the costs will differ based on your financial status.

What happens if I do everything that is asked of me?

Your case will likely be dismissed after the probation period ends (usually 2 years).

Note: Be honest with yourself before committing to participate in the program. 2 years is a long time to be on probation and certain obligations can be difficult to complete—especially if you are juggling raising a family and a full-time job. If you are someone who enjoys a few adult beverages on occasion, ask your attorney about the likelihood of being subject to random alcohol screens. Positive alcohol screens cause a lot of people to flunk the program, which usually results in a conviction and can also lead to severe punishment (some Judges are bothered when a person doesn’t take full advantage of this “second-chance”). Nevertheless, I would urge you not to be deterred—dedicate yourself to the program and you will be glad that you did. When the Judge dismisses your case, it will be worth it in the end.