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Domestic Violence: Should You Get a Lawyer Involved?

Written by Jon Montagna on May 19, 2020. Posted in Divorce, Family Law.

When you’re a victim of domestic or sexual abuse, getting a lawyer involved as soon as possible is the way to go. Having an unbiased party assess the situation and fight for you in a court of law is your best bet at getting justice.

The most important thing about domestic violence cases is knowing your rights. Victims can often be in denial and downplay abuse either because they’ve been gaslit by their abuser or don’t want to fuss with the system. However, abuse is illegal, and these cases should be settled to get the defendant the compensation they deserve.

If you’re still on the fence, here are a few concrete examples of how the law firm of Montagna Klein Camden can help you.

Get an Ex Parte Temporary Order

Before the abuser is served with a lawsuit, you can get this order as long as you provide testimony within 10 days. This gives you a chance to plead your case without your abuser being present.

Filing a restraining order

This is one that most folks generally know, but there are levels to this:

Stay-away order: The most common & demands the person stays a certain distance away from you at all times.
Residence exclusion order: Orders the accuser move out of your space if you live together.
Personal conduct order: orders the accuser to refrain from specific actions.

File for custody or financial support

A lawyer understands the reasons a victim might stay in an abusive situation, such as for the children or financial stability. If you have an abusive spouse, a lawyer can help you get a divorce. This can lead to related legal matters such as child custody, spousal support, and what you’re owed in marital property.

Speak to cops on your behalf

Law enforcement may not always be trained correctly in the careful matter of talking to an abuse victim. Confrontations about your situation can sometimes be emotional and re-traumatizing. Your lawyer can act as the middleman and be a barrier to inappropriate or triggering questioning.

Allowing you to avoid testifying

Much like questioning, discussing your traumatic abuse in a room full of people can make you relive the situation. Aggressive prosecution can make you feel like all that happened is your fault. Having a lawyer can ensure your case stands a chance without you having to testify, and they can look at other evidence to push ahead.

Having someone on your side

Family and friends are wonderful support systems during such a difficult time, but it’s nice to have someone to lean on who can actually help your situation. Getting the details off your chest and having an unbiased person tell you it’s not your fault can offer some solace.

A lawyer would recommend for the strongest case possible, do the following to the best of your ability:

Jot down details of abusive incidents

Make note of the dates, places, objects used, type of abuse, and any details in a hidden journal or cloud folder such as Dropbox or Google Drive that your abuser cannot find.

Document your abuse

Take photos of bruises, scars, scratches, torn clothing, or any indication of abuse. Keep them in a cloud folder such as Dropbox or Google Drive where your abuser cannot find and delete them or email them to someone you trust.

Dive deep for possible witnesses

If you went to the hospital, called the police, think a neighbor may have overheard, told a friend about the abuse – anyone you can think of who can back up your case – be sure to give your lawyer their name.

Keep your address off documents

If you live with your abuser, tell your lawyer so he will not send any mail to the house that your abuser might find. A PO box could be a possible option.

Separate Property, Marital Property, and Hybrid Property.

Written by Jon Montagna on April 4, 2014. Posted in Divorce.

A Virginia Beach Divorce Lawyer discusses separate property, marital property, and hybrid property:

Section 20-107.3 of the Code of Virginia, 1950, as amended defines “separate property,” “marital property” and “part marital and part separate property. As the Code notes, “separate property” is defined as (i) all property, real and personal, acquired by either party before the marriage; (ii) all property acquired during the marriage by bequest, devise descent, survivorship or gift from a source other than the other party; (iii) all property acquired during the marriage in exchange for or from the proceeds of sale of separate property, provided that such property acquired during the marriage is maintained as separate property; and (iv) any part of marital property which may be declared separate property pursuant to court order. Furthermore, income received from separate property during the marriage is separate property if not attributable to the personal effort of either party and the increase in value of separate property during the marriage is separate property, unless marital property or the personal efforts of either party have contributed to such increase and then only to the extent of the increases in value attributed to such contributions. Additionally, the personal efforts of either party must be significant and result in substantial appreciation of the separate property if any increase in value attributed thereto is to be considered marital property.

“Marital property” is defined as (i) all property titled in the names of both parties, whether as joint tenants, tenants by the entirety or otherwise; (ii) that part of any property classified as marital pursuant to court order or (iii) all other property acquired by each party during the marriage which is not separate property as set forth above.

Hybrid property is property that is part separate and part marital. The hybrid property can evolve from separate property due to the personal efforts of the parties.

Gifts, Bequests, and Inheritances: What Are They?

Written by Jon Montagna on April 2, 2014. Posted in Divorce.

Generally, Virginia’s equitable distribution statute, Section 20-107.3, includes as separate property all property acquired during the marriage by gift, bequest, descent, survivorship or gift from a person other than the spouse.

Additionally, the date the gift or inheritance is actually received is the date to be used for the classification of the property.

However, it is important to note that separate property from a gift or inheritance may change or evolve from separate property to marital property by the use and maintenance of the property.

How Long After a Divorce Decree Can a Court Enter a QDRO?

Written by Jon Montagna on February 26, 2014. Posted in Divorce.

After a divorce decree has been entered, can a Norfolk Circuit Court enter a Qualified Domestic Relations Order (QDRO) to create a procedural change effectuating the terms of the final divorce decree?

Yes. Courts always have the authority to interpret their own orders, even 21 days after entry of a divorce decree. As long as the Norfolk Circuit Court Judge does not alter the terms of the initial decree substantively, the Judge can enter a QDRO to make it conform to the intentions of the party.

Steps A Divorce Lawyer Must Take In The Divorce Process

Written by Jon Montagna on February 13, 2014. Posted in Divorce, News.

A Norfolk divorce lawyer begins a divorce action by filing a Complaint for divorce in the Circuit Court. At least one party must be a bona fide resident and domiciliary of Virginia for six months preceding the commencement of the suit.

The venue or location of the Circuit Court for the divorce action is generally based upon preferred or permissible jurisdiction.

Permissible jurisdiction is in any Circuit Court in the Commonwealth of Virginia.

Preferred jurisdiction is where the parties last cohabited as husband and wife; at the option of the plaintiff, where the spouse resides; or if the spouse’s whereabouts are unknown or if the spouse resides out of state, where the plaintiff resides.

The defendant will generally file an Answer and/or Counterclaim.

In the Answer, the defendant will admit or deny the allegations in the plaintiff’s Answer.

In the Counterclaim, the defendant may allege his or her facts for a divorce action. If a Counterclaim is filed, the plaintiff will file an Answer to the Counterclaim, where he or she admits or denies the allegations in the Counterclaim.

To have jurisdiction over the defendant in a bilateral divorce and the ability to resolve certain issues ancillary to the divorce (e.g. support or equitable distribution), the court must determine if personal jurisdiction over the defendant exists. To obtain personal jurisdiction over the defendant, both the plaintiff and the defendant must have a physical presence before the forum court; the defendant must make a general appearance before the court through counsel; or have personal jurisdiction over the defendant by Virginia’s long arm statute.

The Virginia long arm statute is § 8.01-328.1 of the Code of Virginia, 1950, as amended. The statute delineates when personal jurisdiction over a person may be exercised:

A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s:

1. Transacting any business in this Commonwealth;

2. Contracting to supply services or things in this Commonwealth;

3. Causing tortious (wrongful) injury by an act or omission in this Commonwealth;

4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;

5. Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when he might reasonably have expected such person to use, consume, or be affected by the goods in this Commonwealth, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth;

6. Having an interest in, using, or possessing real property in this Commonwealth;

7. Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting;

8. Having (i) executed an agreement in this Commonwealth which obligates the person to pay spousal support or child support to a domiciliary of this Commonwealth, or to a person who has satisfied the residency requirements in suits for annulments or divorce for members of the armed forces or foreign service officers of the United States pursuant to § 20-97 provided proof of service of process on a nonresident party is made by a law-enforcement officer or other person authorized to serve process in the jurisdiction where the nonresident party is located, (ii) been ordered to pay spousal support or child support pursuant to an order entered by any court of competent jurisdiction in this Commonwealth having in personal jurisdiction over such person, or (iii) shown by personal conduct in this Commonwealth, as alleged by affidavit, that the person conceived or fathered a child in this Commonwealth;

9. Having maintained within this Commonwealth a matrimonial domicile at the time of separation of the parties upon which grounds for divorce or separate maintenance is based, or at the time a cause of action arose for divorce or separate maintenance or at the time of commencement of such suit, if the other party to the matrimonial relationship resides herein; or

10. Having incurred a liability for taxes, fines, penalties, interest, or other charges to any political subdivision of the Commonwealth.

Jurisdiction in subdivision 9 is valid only upon proof of service of process pursuant to § 8.01-296 on the nonresident party by a person authorized under the provisions of § 8.01-320. Jurisdiction under subdivision 8 (iii) of this subsection is valid only upon proof of personal service on a nonresident pursuant to § 8.01-320.

B. Using a computer or computer network located in the Commonwealth shall constitute an act in the Commonwealth. For purposes of this subsection, “use” and “computer network” shall have the same meanings as those contained in § 18.2-152.2.

C. When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him; however, nothing contained in this chapter shall limit, restrict or otherwise affect the jurisdiction of any court of this Commonwealth over foreign corporations which are subject to service of process pursuant to the provisions of any other statute.

After the divorce action is filed, counsel for the parties will generally engage in discovery. Discovery might include propounding interrogatories, questions to be answered under oath; request for admissions; and depositions.

After the discovery is completed, counsel will generally set the matter for a hearing. However, counsel will want to insure that the statutory time period has been satisfied for a divorce a vinculo matrimonii, or final divorce. If only a divorce from bed and board is obtained, the parties shall remain separated and have their persons and property protected. But, neither party may remarry under a divorce from bed and board.

At the conclusion of the divorce hearing and if proper, the court will enter a decree of divorce. The decree of divorce a vinculo matrimonii terminates the marriage and either party will be free to remarry. However, counsel should advise their clients not to remarry until after 30 days have lapsed and no appeal or other pleading is filed.

Whether you are in Newport News, Virginia Beach, Norfolk or any other city in the Hampton Roads region, call the divorce lawyers of Montagna Klein Camden to discuss your case. We can help you during this is a confusing and difficult time.

Reasons for Divorce in Virginia

Written by Jon Montagna on January 21, 2014. Posted in Divorce, Family Law.

Experts say that divorce lawyer inquiries spike during January. In an effort to embrace the “new year, new you,” mentality that defines the month, many individuals make the first move toward ending a stagnant or unhappy marriage in the days and weeks after the clock strikes midnight on New Year’s Eve.

If you are considering wiping the slate of past years by filing for divorce, take the time to gather your thoughts and emotions and begin to weigh your options. These options include the grounds by which you plan to file. You can file for a divorce from bed and board (partial divorce via legal separation) or divorce from the bond of matrimony (absolute divorce) depending on your unique situation. Here are the acceptable reasons for divorce as set forth by the Virginia State Bar.

Willful desertion or abandonment. If a spouse breaks off cohabitation both physically and mentally, there may be grounds for divorce from bed and board (and if the divorce continues for a year after the original separation, there may be grounds for a divorce from the bond of matrimony.)
Cruelty and reasonable apprehension of bodily harm. Proof of a home life made unsafe by physical abuse.
“No Fault” divorce. Involves no blame on the part of either spouse. A divorce from the bond of matrimony in these cases requires one year of complete separation.
Adultery, sodomy or buggery. Proof of sexual acts outside of the marriage can be used as grounds for a direct divorce from the bond of matrimony.
Felony conviction. In the event that a spouse is convicted of a felony and confined for more than a year, the other spouse can file for a divorce from the bond of matrimony.

Though these grounds are the legal standards by which an individual looking to file for divorce should judge their personal situation, the lines are often blurred. Sound legal advice from an experienced family lawyer is necessary even in the earliest planning stages of a separation or divorce.

Whether you are in Newport News, Virginia Beach, Norfolk or any other city in the Hampton Roads region, call the divorce lawyers of Montagna Klein Camden to discuss your case.

Can a Virginia Juvenile Court Custody Order Be Modified?

Written by Jon Montagna on December 4, 2013. Posted in Divorce, Family Law.

What to do if you want to modify a previous juvenile court custody order in Norfolk, Virginia Beach, Newport News or another city in Hampton Roads.

Although one generally begins a custody matter in the juvenile court by filing a petition, to modify a previous custody order, one will need to file a motion to modify the previous custody order in the juvenile courts. Additionally, one needs to be aware that the initial ordering court will retain jurisdiction to modify its order if the child or one parent continues to reside in Virginia. If neither a parent nor the child continues to reside in Virginia, jurisdiction is determined as if the matter was going to be originally filed in Virginia. Thus, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) will be controlling.

Under UCCJEA, jurisdiction is generally determined if Virginia is the home state of the child or Virginia was the home state of the child within six months before the commencement of the proceeding and the child is absent from Virginia but a parent or guardian acting as a parent continues to reside in Virginia. Furthermore, if a court from a different state fails to meet the requirements to exercise initial jurisdiction or a different state court has decided that Virginia is the proper forum and declined jurisdiction, Virginia may exercise jurisdiction over the matter. Finally, if no other state would qualify under the UCCJEA to exercise jurisdiction or all other states who could satisfy the requirements under the UCCJEA to exercise jurisdiction have determined that Virginia is the better venue, Virginia may exercise jurisdiction over the child.

What does a juvenile or circuit court in Norfolk, Virginia Beach, Portsmouth , Newport News or other Hampton Roads city consider in modifying a child custody order?

To modify a court order for custody, the Supreme Court of Virginia opined in Keel v. Keel. 225 Va. 606, 303 S.E.2d 917 (1983) that two simple factors be considered. First, the courts consider whether a material change in circumstances has occurred. Second, courts consider whether a modification of the custody situation would be in the child’s best interest.

Unfortunately, there is no clear formula to determine if a modification is in a child’s best interest. Some factors that the Virginia Court of Appeals and the Virginia Supreme Court have noted are the preference of the child, remarriage by a parent, new employment, and death of a parent.

Finding a Divorce Lawyer: 5 Qualities to Look For

Written by Jon Montagna on November 22, 2013. Posted in Divorce.

Divorce is the second most stressful life event (behind the death of a spouse), and for good reason. It involves an upheaval of the needs and feelings of not just the warring spouses, but also of any children involved. That’s why it’s so important that you hire a competent, calm and experienced family law and divorce lawyer to handle the proceedings. Don’t be afraid to “shop around” for an attorney with all five of the following qualities.

A divorce attorney should be…

Part of a well-established practice with a positive track record. While there is a certain amount of confidentiality that goes along with divorce legal proceedings, you’re bound to come across referrals from friends who have gone through a similar experience. Those referrals may help separate the reputable lawyers from the ones with fewer cases under their belts. Online reviews are also useful.
Punctual and responsive. Your attorney should not be so overloaded with clients that he or she doesn’t have time to respond to your requests and inquiries in a timely manner.
Enough of a “bulldog” to champion your interests, but calm enough to command respect. What kind of reputation does a prospective divorce attorney have within the legal community? Does he or she have a habit of reacting based on emotion instead of acting based on facts and the client’s best interests? The answers to those questions can often determine whether or not you get the ruling you deserve.
Empathetic and understanding. Again, divorce is stressful and quite emotional. It’s critical that you hire a lawyer who can encourage you and be your advocate without getting drawn into the emotional frenzy themselves (see number 3).
Surrounded with competent staff. If your divorce lawyer is anyone to speak of, he or she will have other clients who need attention just like you do. That’s why it’s best to hire a lawyer with a highly knowledgeable legal support team to answer your questions and address your needs.

The family law and divorce lawyers at Montagna Klein Camden make it a point to model our firm around these five qualities. We recognize the importance of our clients’ unique needs, feelings and circumstances, and do our very best to provide caring, productive legal counsel to people in Hampton Roads, Virginia. Considering divorce? Call us toll free to schedule a free initial legal consultation at (877) 622-8100 or contact us online. An experienced divorce lawyer will contact you shortly.

Stay DUI Free During the Holidays

Written by Jon Montagna on November 22, 2013. Posted in Divorce, DUI.

Along with a chill in the air and extra warmth in the heart, the holiday season brings an onslaught of parties and get-togethers that often involve alcohol. There’s nothing wrong with enjoying a drink or two with friends and loved ones, but make sure you or a loved one doesn’t end up with a DUI/DWI by following Montagna Klein Camden’s top tips for responsible driving.

1. Always assign a designated driver. Choose one responsible person who you can trust to stay sober and hide others’ keys if needed.

2. …but keep the number of a cab company on hand. Call Black and White Cabs (757-855-4444) in Norfolk if things get out of hand and you’re left with no designated driver.

3. Pace your alcohol intake by enjoying a glass of water between cocktails. Alcohol dehydrates, so remember to drink a lot of water.

4. Eat plenty before and during a night of drinking. If you know you will be drinking a fair amount of alcohol in the evening, prepare throughout the day by eating healthy meals full of protein and good fats.

5. If you are throwing a party, be sure to offer filling food and non-alcoholic options for guests. Readily available “mocktails” as well as water, soda and tea will enhance the evening for designated drivers as well as those guests who choose not to drink.

6. Keep an eye on friends and loved ones to help them stay safe. Never turn a blind eye to a friend with impaired judgement getting ready to drive themselves home.

7. Know your limits. Most people have a pretty good sense of when they’ve had too much to drink, but remember, “buzzed” driving is still drunk driving. Check out this blood alcohol calculator to learn more about your legal limits and avoid getting charged with DUI.

8. Refrain from drinking altogether. It may seem simplistic, but this is the best choice for anyone looking to stay responsible on the road this season.

If you do find yourself charged with a DUI despite your best safety efforts, call the Virginia DUI defense lawyers at Montagna Klein Camden. We have a strong history of finding fair treatment for our DUI clients. Call us today at 757-622-8100 or contact us online. Visit the DUI and Reckless Driving FAQ page for answers to common questions.