There are a lot of scenarios where an individual can file a petition for a protective order against their spouse or any other family member, especially when it comes to cases of domestic violence or when the life of the individual and/or their child is under threat.
What Constitutes a Protective Order in the Commonwealth of Virginia?
An individual can file a petition for a PO in Virginia if they have been a victim of family abuse by their spouse or any other relative or family member. This can include people such as:
- The husband/wife
- An ex-spouse
- Stepparents, biological parents, or grandparents
- Stepchild, biological child, or grandchild
The Length of a PO in Virginia
There are different types of protective orders that are issued in Virginia, each comes with a different timeline. For instance, a permanent protective order, also referred to as a full PO, has a duration of two years from the time it was issued. In addition, the judge also reserves the right the extend the PO if the petitioner is still in distress, threat, or danger.
A preliminary PO has a timeline of 15 days, which can also be extended as seen fit by the judge. An emergency protective order, on the other hand, has a timeline of 72 hours. This can also be extended as per the wishes of the judge if the victim has undergone severe injuries or is in the hospital.
As a personal representative of the decedent’s will, it falls on you to responsibly carry out the implementation of their will. As the executor, there are also going to be very important legal parameters that will need to be followed.
Part of executing the will is going to filing the estate for the probate process during which you will need to identify and accumulate the assets and determine the value of those assets. Then you’ll need to pay off the decedent’s liabilities and taxes (if any). However, during the process, it is likely that you may have to make certain payments out of pocket, which can be reimbursed later.
Expenses an Executor can have Reimbursed
Expenses associated with funeral and burials: Burial costs and funeral arrangements are the first order business, which the executor will need to pay but can later be reimbursed.
Estate Administration Fees
These expenses include things such as filing fees and expenses associated with the overall probate process.
Professional Fees
Any fees related to professional services such as accountants, appraisers, real estate experts, etc., can also be reimbursed or can be paid using the funds from the estate.
Property Expenses
Any expenses related to a property, such as realtor fees, brokerage, commissions, surveys, maintenance fees, etc., can also be reimbursed or paid out of the estate fund.
As the personal representative of the estate, it is very important to gauge whether the estate fund is big enough to cover all these expenses. If not, you should proactively hire a probate attorney who can help you prioritize more important expenses that need to be taken care of along with the types of expenses that cannot be reimbursed.
Uncontested divorce proceedings are simpler and less emotionally stressful than contested divorces. It is an amicable way to dissolve a marriage between two consenting spouses who have realized that their marriage is not going to work.
However, one of the main reasons why uncontested divorces are the way to go is that both spouses sit down and decide who should get what marital assets. Not only that, but they can also decide the amount of child support, who gets primary custody, spousal support, and the arrangements pertaining to divorce.
All these things are officially written down and turned into a contract that can be enforceable by the court of law, which means, you don’t necessarily need to go to court to get divorced. However, there are some important requirements both spouses will have to meet in case of an uncontested divorce.
Uncontested Divorce in Virginia: Conditions Both Spouses Must Meet
Residency
Out of the two spouses, one spouse must prove that they are a genuine Virginian resident. They must also prove that they have been living in Virginia for at least six months before applying for divorce.
Authentic Testimony from Witnesses
In Virginia, for an uncontested divorce procedure, both spouses must prove that they have been living away from each other (in separate dwellings) without any sexual relations for at least 6 months (if they do not have a minor child). If they do have a child, they must live apart for up to a year. This, of course, will also need to be verified via a credible testimony by a witness.
Valid Signatures by Both Spouses
Both spouses must provide their signatures on the divorce documents at several places, highlighting that they approve of the conditions of their divorce.
A conservatorship bond, which is also referred to as a guardian bond, is a very important tool to protect the interests of wards that are incapacitated, minor, elderly, etc. The bond is put into play to force the guardian or conservator to perform their fiduciary duties responsibly and as directed by the court. It helps protect the ward from any financial damages that may occur because of the incompetencies or negligence of the conservator.
Bond or Surety Coverage
In the state of Virginia, it is the circuit court that determines the monetary value of a guardianship bond. The courts also have the authority to evaluate whether a surety on that bond is required. As per Virginia Code 64.2-1411, the bond must be equal to the value identified for the ward’s property or other eligible assets, as well as the ward’s anticipated income. In addition, it is also the court that will decide how to adjust the value of the bond should the income or wealth of the ward drastically increase or decrease.
Some Important Factors the Court Considers When Determining the Amount of the Bond
Generally, there the factors can vary from state to state, however, in Virginia, the following are some vital elements considered by the circuit court:
- The total net value of the ward’s estate and commercial assets (total income).
- Income that the ward will earn in the future (such as government pension plans, benefits, etc).
- The amount of liabilities that will be incurred because of managing the ward’s estate.
Getting to know some vital and typical objections during a divorce is important for both parties that are going through the process to stay better informed and to know what is happening in court. Objections are a vital part of any trial proceeding as they help the judge understand the case factually.
To help get familiar with objections in general, let’s talk about some very common objections that are raised in family law proceedings.
Hearsay
Any statement made by the opposing party’s attorney or the witness they bring in that does not substantiate a fact and is merely a statement that is asserted by something experienced by the witness is known as hearsay and objectionable in court.
For example, the following statement by a witness, “I heard so and so say that Paul was having intimate relationships behind his wife’s back”, is pure hearsay and must be objected to quickly so that the judge strikes the statement off and does not make it admissible.
This is a justified action as the witness is essentially making a statement on behalf of the person who saw or heard anything about an affair. Plus, it cannot be proved either way.
Relevance
The next most common type of objection is based on the relevance of the evidence or statement. You see, judges must weigh in a lot of testimonies and decide based on the relevance of those statements in line with what the case is about.
For example, a statement or piece of evidence is relevant if it helps make the fact reasonably probable or not, especially if there is no evidence to begin with. Second, it will also be relevant if it directly corresponds to the action.
How Virginia Determines What Constitutes Cruelty for A Divorce
In Virginia, a divorce can be filed based on cruelty. Now, there are a variety of definitions of cruelty in the eyes of the Virginia family courts. For instance, physical violence, behaviors that put the life of the individual in jeopardy, foul and derogatory language against the spouse, below-the-belt statements, continuous neglect, etc., are also considered cruelty by family courts in Virginia.
Categories of Cruelty in Virginia Divorce Law
Bodily Harm
Any act of violence that has led to the victim sustaining minor or major injuries or was a threat to the individual’s health is regarded as physical cruelty and therefore, is grounds for filing for divorce.
Emotional Jeopardy
Like physical harm, there are a variety of ways a person can inflict mental harm. Acts and behaviors that include making humiliating or derogatory remarks, aggressive displays, emotional neglect, willful non-intimacy, etc., are all regarded as emotional harm.
The Need to Prove Cruelty to File for Divorce
It’s important to understand that if you’re filing for divorce based on cruelty, you’ll need to first provide the court with clear evidence of abuse. If you have indeed been a victim of physical or emotional violence, there are different ways you can collect information as evidence, such as:
- Hospital Records (x-rays, MRIs, lab results, transcriptions, etc.)
- Affidavits (verified reports and remarks mentioned by your psychiatrist that can be used as evidence of your declining mental health due to emotional abuse).
- Verifiable statements that can be corroborated by your friends and family members.
If you’re a military veteran who has been injured in the line of duty or during your tenure as a serviceman, you can stand eligible for attaining VA compensation. However, you will have to first prove that you got injured or that a preexisting injury worsened during your time in the military. But some other factors can disqualify you from getting any compensation.
Factors That Can Disqualify Veterans from Seeking VA Benefits
A Dishonorable Discharge from Service
A veteran who has been discharged from service dishonorably due to any unintentional misconduct will never be eligible for VA compensation. This does not apply to servicemen who have been honorably discharged or underwent a general discharge.
Intentional Misconduct
A military veteran who has been found guilty of willful misconduct (which is essentially being caught knowingly committing wrongdoing or engaging in criminal behavior) while being an active military serviceman is not going to qualify for VA benefits.
This also applies to the situation where a veteran intentionally injured themselves to apply for VA compensation. However, if this is the case, then it is the VA that will be responsible for proving any intentional wrongdoing.
Qualifying for VA Disability Benefits
If a veteran is discharged honorable or generally and has an injury or an illness worsened over time during their tenure, they will still need to provide medical evaluations and proof to be eligible for any compensation.
It is important to understand that a guardian or a conservator is legally obligated to work in the best interest of their wards. A guardian is responsible for taking care of the ward’s legal, health, and property matters, making the right decisions on their behalf. Conservators, on the other hand, are legally mandated to overlook the financial affairs of an incapacitated elder ward or a minor. Conservators are given complete autonomy over the disabled ward’s finances, health decisions, property, and other matters.
Looking at Typical Breaches of Trust and Fiduciary Responsibilities
As a conservator, spending your ward’s finances on fulfilling your personal expenses is a breach of duty. Similarly, failing to maintain adequate accounts of the ward’s finances is also a breach of trust. In addition, neglecting to pay the ward’s bills and other expenses is also a breach of trust.
As a guardian, neglecting to take care of the incapacitated ward properly or as guided by the court can be seen as a breach of duty. Similarly, exploitation of the ward’s mental capacity or physical/emotional abuse is also considered as a breach of fiduciary responsibility and are all punishable offenses.
Reporting the Offenses
In case of physical or emotional abuse, it is important for either the ward or their family members to gather evidence of abuse and immediately contact the local authorities. They can also petition in the probate court to remove the guardian or conservator, pending criminal investigation.
A POA or power of attorney is a legally notarized and binding document that authorizes a third-party representative to make financial or personal decisions on behalf of the individual who signed the document.
This individual will be known as the ‘principal’, and the person authorized to act on their behalf will be known as an attorney-in-fact.
However, it is extremely vital that the principal fully understand all the aspects of a POA document and the consequences of being neglectful, especially before they sign the paperwork after which the document becomes legally enforceable.
Challenging the Power of Attorney if the Principal Gets Incapacitated
Generally, a durable power of attorney document, in many states, provides the attorney-in-fact the authorization act on behalf of the individual even if the said individual is incapacitated. In the state of Virginia, however, a POA is deemed invalid if the principal is incapacitated. This is unless the document specifies that the agent is authorized by the principal to continue even during their incapacitation.
Challenging Misconduct and Abuse of Power
In other cases, the principal’s relatives and close friends and family may also challenge the POA if the agent is found grossly neglecting their duties and misusing their power. The relatives or the principal themselves can petition a complaint against the agent in court and provide reasonable proof of misconduct and abuse of power.
When an appointed conservator or guardian is set to move to another state, it is legally mandatory for them to file a petition in the new state’s circuit court, validating their transfer so that they can continue to provide their services as their ward’s guardian or conservator. In addition, they will also need to inform the original court.
Important Elements to Keep in Mind
Many states require conservators or guardians to register and verify their position as guardians in the new jurisdiction. Plus, depending on the scenario, the original court may schedule a hearing where the guardian will need to explain how they plan to manage their ward if they’re transferring to a new state and whether the move may or may not be detrimental to the well-being of the ward. This is certainly the case for Virginia.
Important Considerations Noted by the Court
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The court will evaluate whether the ward is temporarily or permanently settling in the new state.
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If the guardian’s transfer to the new state is in the best interests of the ward or if the ward should settle in the new state.
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Whether the ward’s immediate family members have any concerns about the ward’s or the guardian’s transfer to the other state.
However, the ward needs to know that guardianship or conservatorship transfer laws vary from state to state, which is why they should consult the issue with their attorney. Moreover, the ward or their family member can also question the ability of the guardian to provide care for the ward when they transfer to the new state. Plus, they may also contest the transfer.