What is a GAL and why did the judge appoint one in my case?

May 15th, 2012

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If you are charged with a crime, and there is a possibility that you might be sentenced to at least 6 months in jail, and you cannot afford an attorney, the Judge can appoint an attorney to represent you in that case.  This attorney is appointed to advocate on your behalf and to assist you in your defense.

The Court in Virginia can also appoint another type of attorney if your situation meets the criteria set by the court, and the Judge feels it is appropriate.

‘GAL’ stands for ‘Guardian Ad Litem’.  There are two parts to this term.  Part one is ‘Guardian’ which means someone who acts for the benefit of another, and part two is ‘Ad Litem’ which means ‘for the Lawsuit’.  So, the court may appoint someone to act for the benefit of another for the purpose of the lawsuit.  The person that is appointed by the court is called the ‘GAL’.

The court may appoint a GAL when a party to the lawsuit is incapacitated in some way.

Most of us think of incapacity as having a mental or health disability, and this is considered a physical incapacity.

Someone is also considered legally incapacitated when they are unable to attend court themselves.  This might be because they are in the military and stationed away from home.  Or perhaps the person can’t be found because none of the persons involved in the court case knows where they live now.  Or perhaps they are incarcerated.

In all of these situations, a GAL can be appointed to represent the adult who is not able to represent himself.  The role of the GAL in these cases is to make sure that the adult is treated fairly in the legal case and that any decision that is made by the court is not going to permanently put the represented person at an unfair disadvantage.

Another type of incapacity is based on age.  A person under the age of maturity, which is the age of 18 in Virginia, is also considered legally incapacitated.

If a child, under the age of 18, is charged with a crime it is possible that the court will appoint both an attorney to defend the child against the criminal charges and a GAL to look out for the best interests of the child.

Another time when the court might appoint a GAL is during a legal case regarding custody or visitation of a child.

When parents are fighting over custody and visitation of their children, the courts base their decisions on the best interests of the child.   Most of the time, the parents really do believe that what they are trying to do is in the best interest of the child.  But everyone must understand that the parent’s vision of the best interest of the child is colored by the position of that parent.  That is why the courts will often appoint a GAL to represent the best interest of the children.

The GAL does not represent either the mother or the father, and if either parent wants to have an attorney, they should retain one on their own.

The GAL  for the child has the ability, and the duty, to look at all aspects of the child’s life.  The GAL is able to talk to the child’s teacher, doctor, day-care provider and any other person that can bring input about the child’s life.  The GAL also talks with each parent and will usually do a visit to the parent’s home, generally while the child is there so the GAL can see how the child and the parent interact with each other.

If the child is old enough, and mature enough, the GAL will listen to what the child wants and take the child’s desires into consideration.  But, the GAL is not there to advocate for what the child says he/she wants.  The GAL is there to report on the situation and to make a recommendation on what is in the child’s best interest.

The GAL might provide a written report to the Judge before the trial, or the GAL report might be given as oral testimony at the trial.  In either case, the Judge will consider the GAL report as one additional piece of evidence to be considered.

The Judge is the one that makes the final determination.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Posted in Crimes, Custody, General Information, Guardian | No Comments »

Some Financial Effects of Divorce

May 1st, 2012

When two people are dating, they often decide to move in together for a number of reasons, and one of those reasons can be financial.  After all, why pay for two sets of living expenses (rent, electric, cable etc.) when you are spending all of your time together?  It is cheaper to combine expenses.

The opposite happens when people get divorced, but for some reason it seems to come as a surprise to people that they are not able to continue to maintain the same lifestyle that they had as a couple.

Often, the couple’s financial difficulties are one of the reasons they got into marital problems in the first place, and now that same combined income needs to pay for two separate households.

Everyone seems to understand that the ‘stuff’ to be divided at the time of a divorce includes the house, the cars, the televisions and the other tangible items.  What they often don’t understand is that debts are also considered marital ‘stuff’ that will be divided.  Debts are contracts made between parties where one side (the creditor) agrees to provide something (money) in exchange for the other side’s agreement to pay the creditor back, usually with interest.

Most of the time, the divorce will assign the debt to the person who signed this debt contract as the ‘responsible party’ for the debt.  For example, if Bob gets a credit card in his name alone, he is the ‘responsible party’ for that debt and he will probably be assigned that debt in the divorce.

If the debt is in both of their names, the divorce may assign the debt to one party, but the contract with the creditor has never been changed.  What this means is that the creditor can still file a lawsuit against both Husband and Wife to try to get repayment of the debt.

As an example, Bob and Carol were married when they applied for a credit card to cover the cost of furniture for their home and they both signed the credit card contract.  Now, Bob and Carol are divorced and that debt has been assigned by the divorce to Bob.  Bob does not make the payments on the credit card and the credit card company sues both Bob and his ex-wife Carol for repayment.  Carol will need to defend herself against that lawsuit in court so that the court can order that Carol is not to be held responsible for this particular debt.  Carol can do this herself, but she will probably hire an attorney to assist her.  If the divorce decree is worded correctly, Carol can then file suit against Bob to have him reimburse her for her legal fees.

There are also times when one or both of the parties files for protection under the Bankruptcy Code.  Again, a careful drafting of the divorce decree can help protect the other party from being held responsible for a debt that has been discharged by the other ex-spouse.

Divorce is an emotional and difficult process that can have immense and varied financial implications that should be discussed with an attorney who can help provide you the assistance and protection you need.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Posted in Bankruptcy, Debt Collection, Divorce, Family Law | No Comments »

Someone owes me money, how do I get it? part 3 — collecting the debt

April 17th, 2012

Once the court has granted you a judgment, you now need to collect on that debt.  You and the debtor may be able to come to an agreement about payment, which will be the easiest way to get your money.

You may want to hire a ‘debt collector’ who will handle this part for you and who will know the laws and follow the rules of the Fair Debt Collection Practices Act (FDCPA).

Another option is to collect the debt yourself.  As long as you are collecting a debt that is owed to you personally and you are doing things yourself, using your own name, you are not bound by the rules of the FDCPA.  However, even if you don’t need to follow all of the rules, you might want to consider reading over the FDCPA rules on what can and can’t be done to collect a debt or you might find yourself in front of the judge on a harassment charge.

You might be able to get a court order to tell a third party that they need to give you some money that would normally be given to the debtor.  This process is called a ‘garnishment’ and there are rules about how much of the debtor’s funds may be given to you.

The most common type of garnishment is when a debtor garnishes the wages of the debtor and a portion of the debtor’s wages are paid to the creditor instead.  There are rules about garnishment of wages and limits on how much of a person’s wages can be withheld.

You might also be able to garnish the funds in the debtor’s bank account.   Again, there are special rules about what can be garnished.

You may also be able to force the debtor to give you some of his or her personal property to satisfy the debt.  This process is started by filing ‘Debtor’s Interrogatories’ which is a process in which the debtor needs to appear and tell you about the assets he or she owns, where those assets are located, and how much each of those assets are worth.  Sometimes these are ‘big’ assets like a house or a car, and sometimes these are smaller assets like a TV or a watch or a ring.

Once you know what assets are available, you can ask the court to have the sheriff seize and sell the assets and give you the money from the sale.

Or, you might be able to put a lien on the asset which means that if the asset is ever sold, you will be paid before the debtor receives his money from the sale.  Of course, this works best for assets like a home or a car where you have the ability to record your lien and where the record is reviewed before the sale is completed.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Someone owes me money, how do I get it? Part 2 – the Trial

April 7th, 2012

We have all seen TV shows and movies where there is a trial with the Judge, the attorneys, the jury and the court reporter.  In Virginia, the only required people are the Judge, the person bringing the charges and the person answering the charges.  If the case is being heard in the District Court there is not even a place for a jury to sit, and the parties are often standing right in front of the Judge.

In a criminal trial, the person bringing the charges is either the prosecutor or the police officer.  In other words, the ‘state’.  In a civil trial, the person bringing the charges is called a ‘plaintiff’ and if somebody owes you money, you would be the ‘plaintiff’.

The person who is answering the charges is called the ‘defendant’ whether it is a criminal or civil case.  In our example, that would be the person who owes you the money.

The Judge is the person who makes the decision, and he or she makes that decision based on the facts of the case as they are presented at the trial, and how those facts fit into the existing laws.

In the case of the Warrant in Debt that was discussed in Part 1, you have probably already presented the ‘Bill of Particulars’ which tells the defendant why you think they owe you money, and the defendant has probably already provided the ‘Grounds of Defense’ which tells you why they think they don’t owe you the money.  These documents give the Judge the outline of the case, but you still need to provide evidence so the Judge can make a decision.

The evidence can be documents, things, or testimony of people that have knowledge of the facts of the case.  There are special rules which control what evidence can be admitted for the Judge to review.

Even if you are not an attorney, you are going to be bound by the rules of evidence when you are in a trial.  This is another reason why it is sometimes helpful to have an attorney instead of representing yourself.  The main things to remember are that the evidence needs to be relevant and truthful.

If the evidence is testimony of a person, that person will need to raise his or her right hand and swear or affirm that the testimony they will give is the truth.  If the person gives untruthful testimony while under oath, they can be found guilty of perjury, which is a criminal offense all by itself.

Oral testimony is usually given as a series of questions and answers.  Remember that there is no arguing!  If you think the person is not telling the truth, you can ask another question or ask the same question in a different manner, but you cannot get into a shouting match like you did when you were a kid.

Also, remember that a person can only provide evidence about what he or she saw, heard, or said themselves.  They cannot testify that ‘Susie told me…’ because that is called ‘hearsay’ and the judge can’t use that as evidence when making the decision.

If the evidence is a ‘thing’ you will need to first prove that the ‘thing’ is what you say it is before it can be introduced.  This is called ‘laying the foundation’.  For example, if I wanted to introduce a copy of the contract, I would first ask ‘I’m showing you a document.  Is this the contract that was signed by you and the defendant’?

Each side gets a chance to put forth their evidence and then the Judge will allow each side to make a statement about why they think they should win.  Then the Judge makes the decision.

In Virginia, you have 10 days in which to appeal any decision by a District Court Judge.   If either side notes an appeal, the whole trial will be done over again in the Circuit Court before a different Judge.  You don’t need to present exactly the same evidence at the appeal trial, but a lot of the evidence will be the same.  You might also change your tactic a little based on what the other side did in the District Court trial.

In our example, if the Judge decides that the person does owe you the money, and there was no appeal, you will now have a ‘judgment’.  You won!  But the judgment is really just a piece of paper saying that the other person owes you some money.  You can’t usually take this piece of paper to the gas station or the grocery store to buy things.  Actually getting the money can take some additional steps.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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Someone owes me money, how do I get it? Part 1 – Warrant in Debt

April 1st, 2012

A number of people call me when someone owes them money and they don’t know how to get paid.

If the amount of the total debt is under $25,000 I suggest that people go to the General District Court and file a ‘Warrant in Debt’.  This is how you start the process in Virginia.  The ‘Warrant in Debt’ is a form that lists the person who owes you the debt, the reason they owe the debt, and the amount of the debt.  There is a fee for the filing of this form with the court, and there is a fee to have the form given to the alleged debtor by a Sheriff.  You can also use a private process server, but in Virginia having the document served by the Sheriff is less expensive.

And yes, you can add the cost of the fees for the ‘Warrant in Debt’ to the total amount owed.

The ‘Warrant in Debt’ needs to be served on the person who owes you the money and you and the debtor must show up in court on the designated ‘return date’.  At the hearing on the ‘return date’, the judge will ask the debtor if he/she agrees that they owe the money.  If they say ‘yes’ the judge will enter a judgment for that amount and you now have a legal piece of paper saying they owe you the money.

If they dispute the claim for the money, the judge will set a date for a trial where you need to prove how much is owed and why.  They will, of course, try to prove that they don’t owe the money.  This trial is in front of the judge and after hearing all of the evidence and testimony from both sides, the judge will make a decision as to whether or not they money is actually owed.

If the debtor does not show up at the hearing, you can ask the judge to enter a ‘judgment’ for the amount you had entered on the form.

If you don’t show up for the hearing, the judge will generally dismiss your case.

Usually, if the debtor shows up at the hearing and disputes the amount, he/she will ask for ‘pleadings’ which include the ‘Bill of Particulars’ that you will need to provide to the debtor with a copy to the court, and a ‘Grounds of Defense’ which will be provided by the debtor to you and to the court.  The judge will give you due dates for these documents and you will need to make sure that these documents are received on time or your case can be dismissed.

There are parts of this process that you may be able to do yourself.  You can read about why you may need a lawyer here.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

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