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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.

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.