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FAQs : Family, Immigration, Criminal or Military RightsType in your Search Term
Family LawLegally, what is marriage? How is marriage defined?
Most states define marriage as a civil contract between a man and a woman to become husband and wife. The traditional way to marry is to get a marriage license from a state-authorized official, then participate in a formal civil or religious wedding ceremony.
(Source: American Bar Association, You and the Law, Publications International, Ltd., 94-95 (1990) )
Back to TopI am getting divorced. Do I need an attorney?
It ordinarily is a good idea to consult with a lawyer about
major life events or changes, such as a divorce. S/he will
protect your rights, as well as the rights of your children.
S/he keeps current with the laws in your state concerning
marriage, divorce, marital property, child custody and
visitation, and family support.
How can I find an attorney?
One of the best ways to find an attorney is via referral from
other family members, friends, colleagues or professionals (i.e.,
accountant, therapist, and clergy). For a list of state and
local bar association referral programs, see
www.findlegalhelp.org
for more information and resources.
Back to TopWhat are the legal grounds for obtaining a divorce?
The grounds for divorce depend on the state, and may be based on
no-fault or fault. A no-fault divorce is available in some form
in all 50 states; many states also have fault-based grounds as
an additional option. A no-fault divorce is one in which neither
the husband nor the wife officially blames the other for the
breakdown of the marriage. Common bases for no-fault divorce are
"irreconcilable differences," "irretrievable breakdown" or
"incompatibility." Another common basis for no-fault divorce is
that the parties have lived separately for a certain period of
time (varies from state to state) with the intent that the
separation be permanent. The list of grounds for a fault-based
divorce may include: adultery, physical cruelty, mental cruelty,
attempted murder, desertion, habitual drunkenness, use of
addictive drugs, insanity, impotency, and infection of one’s
spouse with venereal disease.
Back to TopWho determines how assets are divided in a divorce?
Generally, spouses are free to divide their property as they see
fit in what is called a "marital settlement agreement," which is
a contract between the husband and the wife that divides
property and debts and resolves other issues of the divorce.
Although many divorces begin with a high level of acrimony, a
substantial majority are settled without the need for a judge to
decide property or other issues. However, if the division of
property cannot be settled, then the court must make the
determination. Laws vary from state to state. As a starting
point, many states allow both parties to keep their
"non-marital" or "separate" property. See
Family Law in the 50 States Tables,
click on Property Division. How do courts determine who gets custody of children in a divorce?
If the parents cannot agree on custody of their child, the
courts decide custody based on "the best interests of the
child." Determining the child’s best interests involves many
factors, no one of which is the most important factor.
(Source: Atkinson, Jeff, The American Bar Association Guide
to Family Law, 1996.)
What is joint custody?
Joint custody has two parts: joint legal custody and joint
physical custody. A joint custody order can have one or both
parts.
Joint legal custody refers to both parents sharing the major
decisions affecting the child, which can include school, health
care and religious training. Other considerations under these
types of custody agreements can include: extracurricular
activities, summer camp, age for dating or getting a job, and
methods of discipline.
Back to TopHow is child support determined in a divorce or child support case?Family_Law_FAQs
All 50 states have adopted child support guidelines. Some states use
tables that indicate a support amount for different ranges of
income, similar to tax tables. Although some states base support on
the payor’s income, many states use an income shares model, which is
based on the income of both parents. Usually, the parent without the
child the majority of the time will pay support, but if both parents
share time with the child equally, the parent with the greater
income usually pays support. The support may be reduced based upon
the amount of time the payor spends with the child. Some states also
cap support at a certain income level. If a parent is intentionally
not working or is working at less than he or she is capable of
earning, the court can "impute income," which means setting support
based upon what the parent is capable of earning rather than actual
earnings. States vary on what expenses are included in child
support. For example, some states include medical expenses and day
care, while other states add those costs on top of the child
support.
See
Family Law in the 50 States Tables,
click on Child Support.
Back to TopWhat happens if a parent does not pay court-ordered child support?
In 1994, 5.4 million women with children were due child support
(far below the number eligible for such orders). However, of the
5.4 million, only slightly more than half received the full
amount, while a quarter received partial payment and a quarter
received nothing at all. Various enforcement mechanisms exist
against these so-called "dead-beat parents," including automatic
withholding of the
obligor’s income. The court has the power to hold a party in
contempt for violating a court order. The contemnor must be
allowed an opportunity to "purge" the contempt, meaning to
comply with the order. If the contemnor does not purge the
contempt and has the ability to pay, the court has the power of
incarceration, although usually for a limited amount of time,
such as six months per contempt citation. In addition, many
states have criminal penalties for failing to pay child support.
Recently, Congress has enacted many new enforcement mechanisms,
creating greater collaboration between federal and state
governments. These include suspension of driver’s licenses and
professional licenses, seizure of tax refunds, seizure of bank
accounts and investment accounts, and even publishing the name
and picture of the "dead-beat parent" on posters and in
newspapers. The law also improves interstate enforcement by
bolstering federal services to locate parents across state lines
and by requiring all states to have common paternity procedures
in interstate cases. Back to TopDo grandparents have visitation rights to their children?
Traditionally, the common law denied grandparents visitation
with a child over a parent’s objections. But since 1965, all
50 states and the District of Columbia have enacted
legislation enabling grandparents to petition the courts for
visitation rights with grandchildren. The laws do not make
granting of visitation rights automatic—they merely give
grandparents the right to ask for a visitation order. Many
states permit only grandparents to petition for visitation,
but some have extended the right to other relatives, such as
great-grandparents, aunts, uncles and siblings, stepparents,
and even non-relatives with whom the child has a close
relationship. In these and other areas, state law governs.
Back to Top
What are some factors that are considered by the U.S. Citizenship and Immigration Services (USCIS) in granting an individual immigration status?
A: Factors considered by the USCIS include:
·
Whether the applicant has an immediate relative who is a U.S.
citizen or lawful permanent resident; · Whether the applicant has a permanent employment opportunity in the U.S., and whether that
employment fits under one of the five eligible employment
categories; · Whether the applicant is making a capital investment in the U.S. that meets certain dollar thresholds,
and that either creates or saves a specified number of jobs; and · Whether the applicant qualifies for refugee status as an individual who suffers or fears persecution on the basis of race, religion, nationality, political view, or membership in a certain group in his
or her country of origin.
Back to TopWhat is the purpose of the Diversity (DV) Lottery Program?
A: The purpose of the DV Lottery Program is to annually award immigrant visas to applicants whose country of origin has low immigration rates to the U.S. (not more than 50,000 in the last five years). The program is called a lottery because there are more applicants than available visas, and the visas are granted randomly among qualified applicants. Back to TopWhat is the basis for being deported? What are the consequences of deportation?
A:
Deportation (or removal) occurs when an
alien is found to have violated certain immigration or criminal
laws, consequences being that the alien forfeits his or her
right to remain in the U.S., and is usually barred from
returning.
Back to TopHow is the deportation process initiated?
A:
The Bureau of Immigration and Customs
Enforcement issues a Notice to Appear (NTA) stating the reason
why the alien should be deported or removed. The NTA is served
to the alien and is filed with the immigration court. A hearing
is scheduled, at which an immigration judge will determine if
the information in the NTA is correct. If it is, removal of the
alien will be ordered.
Back to TopCan a deportation or removal order be appealed?
A:
Yes. The alien has 30 days to appeal the
decision to the Board of Immigration (BIA). If the BIA decides
against the alien, the matter can be appealed to the U.S. Court
of Appeals. Finally, if the Court of Appeals also finds against
the alien, the matter can be appealed to the U.S. Supreme Court.
Back to TopUnder what circumstance will a foreign spouse's permanent resident status in the U.S. be conditional?
A: A spouse's permanent resident status will be conditional if it is based on a marriage that was less than two years old from the day the permanent resident status was granted. To remove the conditions, the spouse must establish that the purpose of the marriage was not to evade the U.S. immigration laws. Back to TopUnder what circumstance will a foreign fiance(e), who has been admitted into the U.S. for the purpose of getting married, be required to leave the U.S?
A:
If the marriage to the U.S. citizen who
filed the petition to permit the fiance(e) into the U.S. does
not take place within 90 days of entering the U.S., the
fiancé(e) will be required to leave the country.
Back to Top
A:
Yes. A married U.S. citizen, or an
unmarried citizen who is at least 24 years of age and will be at
least 25 when the petition is actually filed, may file a
Form I-600A, Application for Advance Processing of Orphan
Petition, to speed up the adoption process.
Back to TopWhat is the basic law that governs immigration?
A: The federal Immigration and Nationality Act provides the basis for U.S. immigration law. Back to TopCan a fee for immigration related services be waived?
A:
Yes. The U.S. Citizenship and Immigration
Services (USCIS) bureau has discretion to waive a filing fee if
the applicant can establish that he or she is unable to pay. In
order to have the USCIS consider waiving a fee, the applicant
must follow specific instructions, including completion of a
form for review by the USCIS.
Back to TopCriminal Law
Can I discuss my case with family, friends and the newspaper?
Do not talk to anyone except your lawyer. Do not make any verbal or written statements to anyone, including the police, regarding any aspect of your case. Anything you say may be used against you in court. Anything you say can have a significant impact on your case. One indiscreet word can result in your conviction. One misplaced confidence can result in your incarceration. Do not talk to reporters of news agencies. Any press releases must be done through our office.
Back to TopWhat is a felony and a misdemeanor?
A felony is a criminal law that provides for incarceration greater
than one year and the payment of fines. Capital felonies can result
in execution. In Virginia, felonies are classified by the amount of
possible punishment. A misdemeanor is a criminal law that provides
for possible incarceration of up to one year and the payment of
fines. In Virginia, there are four classes of misdemeanors with
varying degrees of punishment. Back to TopWhat is the presumption of innocence?
Despite being charged with a criminal offense, a defendant is
presumed to be innocent. The prosecuting authorities have the burden
to prove guilt beyond a reasonable doubt. An accused is entitled to
this presumption at all stages of their case. Generally, if the
trier of fact believes the evidence against an accused is sufficient
to prove guilt, the prosecuting authority will have overcome the
presumption of innocence.
Back to TopWhat is a reasonable doubt?
A reasonable doubt is a doubt based on the judge's or juries sound
judgment after a full and impartial consideration of all the
evidence of the case. As such, the "reasonable doubt" standard is
subjective, ambiguous, and interpretive. It is not an objective
standard, and creates uncertainty regarding the outcome of criminal
cases. Back to TopWhat is a guilty plea?
A guilty plea is an admission that you committed the alleged
offense. The effect of a guilty plea admits all the criminal facts
alleged and waives your right to defend yourself. No additional
facts are needed to reach a verdict. A plea of guilty waives all but
jurisdictional objections, impermissible sentence objections, and
the objection that no offense is charged. It entirely relieves the
prosecution of the burden of proving any facts. If an accused pleads
guilty to a felony, they are waiving their right to an appeal except
on jurisdictional grounds or the imposition of an impermissible
sentence. Back to TopCan I get a plea agreement?
A plea agreement or plea bargain is an agreement with the
prosecuting authority regarding a case. An accused may or may not
have the option of entering a plea agreement with the prosecuting
authorities. The prosecutor may not want to enter a plea agreement.
There are different types of plea agreements. The most common is a
plea agreement for a particular sentence. In this situation, the
judge may accept, reject, or defer its decision until a persistence
report. The agreement would not bind a defendant if rejected and
they could withdraw their guilty plea. Another judge may then
conduct the trial. Other types of plea agreements include the
prosecuting authority’s recommendation and an agreement not to
oppose your request for a particular sentence. These types of plea
agreements are not binding on the court, and a defendant cannot
withdraw their guilty plea. The court could impose a more severe
punishment. Back to TopCan I get a jury trial?
An accused has a right to a trial by a jury of their peers. The
jury's decision must be unanimous. Each juror must find an accused
guilty or not guilty. If the jury is unable to decide, then a case
may be retried. An accused does not have a right to a jury trial if
there is a guilty plea.
Back to TopWhat are the steps in a criminal case?
The typical steps for most criminal cases include the pre-arrest
investigation by the police; the issuance of a summons, warrant or
indictment; the formal arrest and booking process; the appearance
before a magistrate and the setting of a bond; the initial
appearance before a district judge and determining if the accused
will have an attorney; a preliminary hearings in felony cases when
an arrest is by a warrant; review of indictments by a grand jury in
felony cases; the scheduling of the trial; pretrial motions;
arraignment and plea; the trial; a sentencing hearing if found
guilty; and thereafter the appeal process.
Back to TopCan I call witnesses in my behalf ?
An accused has a right to call witnesses and to present evidence in
their own behalf. Witnesses would be subject to questioning
(cross-examination) by the prosecution. The judge or jury decides
whether to believe a witness. The judge or jury can accept or reject
the testimony of any witness, in whole or in part, when considered
with other evidence. An accused has a right to compel the attendance
of witnesses to court by a subpoena. An accused should provide the
witnesses' name addresses, telephone numbers, a written summary of
their testimony, and whether you believe, they will be a favorable
or unfavorable witnesses. You should always timely subpoena any
witness. If you do not subpoena a witness, and they do not appear on
the trial date, the judge may require you to proceed, even though
the witness is not present. If you subpoena the witness, and they
are served, and the witness does not appear, then there is a greater
chance that the judge will continue the case. Always make sure that
you give the names, addresses, and telephone number of any witness
to your attorney in sufficient time to subpoena all necessary
witnesses. Back to TopCan an attorney guarantee the outcome in my case?
Generally, the answer is NO. There are no guarantees in most human activities, and regretfully this is true of the criminal justice. Despite elaborate rules and procedures designed to promote accuracy and reliability, the judicial process is not perfect and is subject to the same limitations intrinsic in all human activities. For example, evidence and facts presented at trial may differ with one’s expectations; witnesses may lie; honest witnesses may not be believed; or judges or juries may have differing views regarding the law or evidence. Consequently, there is always an element of risk going to court, and guaranteed outcomes are generally impossible. Back to Top
Are there other consequences that I
should consider? Yes. If you are found guilty, including pleading guilty, there can be significant consequences beyond your immediate case. This can include important past, present, or future matters. Such matters may include without limitation civil matters, domestic matters, military matters, employment matters, prior criminal or traffic matters, immigration matters, and other rights and privileges of citizenship. Importantly, prior suspended criminal sentences could be revoked. Who makes the decision regarding a plea agreement? The value of entering a plea agreement is dependent upon the particular facts, merits and circumstances of a case and the risk an accused is willing to assume. The final decision to enter a proposed plea agreement belongs to a defendant. Before entering any proposed plea agreement, an accused should be satisfied that it is in their immediate and long-term interest.
Can I testify? An accused has the right to testify but is not required to do so. This is his or her decision. If an accused does testify, he or she waives the privilege of not giving evidence against themselves. An accused will be subject to all the rules of cross-examination as any other witness. An accused may not testify just to events and circumstances that merely supports his or her defense, and selectively suppress other relevant facts and matters that incriminates them. The trier of fact can view testimony in a positive or negative manner, and may believe or disbelieve what is said. The judge or jury will have the opportunity to listen to what is said, observe the witnesses demeanor, and then decide the significance of the testimony, within the context of all the evidence An accuse should consider the pros and cons of testifying. His or her testimony could affect a finding of guilt, innocence, or your sentence.
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