FREQUENTLY ASKED QUESTIONS

The police have contacted me and want me to speak with an investigator about the case. What should I do?
In the United States, you are never required to speak to the police. This is your constitutional right not to incriminate yourself. However, if you do choose to speak to the police you cannot lie to them or you could be charged with an additional crime of lying to a police officer. In general, we recommend that you not speak with a police officer or anyone working on behalf of the police who is investigating a possible criminal charge against you. The goal of the police is not to help you get out of possible trouble. Their goal is to extract information from you (preferably voluntarily) that they can later use in your prosecution. If you want to speak to the police, you should always have an attorney present who can advise you what questions to decline to answer.

Can you explain the legal process and what I should expect?
The process of charging you with the commission of a crime generally begins with an arrest. Once you are arrested you are taken before a magistrate who will determine whether to release you pending your court date and, if so, under what conditions. Often, a magistrate will set a bond that must be paid in order to secure your release. The purpose of the bond is to ensure that you show up to court. If you cannot afford to pay the bond set by the magistrate, you can hire a bail bondsman who will usually charge about 10% of the bond amount and will then guarantee payment of the bond. This may enable you to be released without posting a large sum of money.

Do I need an attorney to represent me at the arraignment?
Once you have been arrested, a court date called an arraignment, advisement, or a pre-trial hearing, will usually be scheduled within about a week. The purpose of the arraignment is to inform you of the specific charges pending against you and of your right to hire a lawyer to defend you. At the arraignment, the judge will set the next court date which will generally be the trial date if the charge is a misdemeanor or a preliminary hearing if the charge is a felony. Unless you are incarcerated at the time of the arraignment, you often can attend the arraignment on your own, without the need to hire an attorney. However, you may have special circumstances such that you would benefit from hiring a lawyer to represent you at the arraignment. You should speak to a lawyer to determine whether you can attend the arraignment on your own or whether you should spend the extra money to hire an attorney to attend with you.

What happens at trial?
If your case is a misdemeanor, meaning that the potential jail sentence is one year or less, then the next court date after the arraignment is usually the trial. If your case does not settle through a plea agreement, the Commonwealth will present its witnesses and evidence against you and your lawyer will have the opportunity to cross-examine and cast doubt upon the Commonwealth’s witnesses because of their lack of credibility, bias, poor memory, or other reasons. Your lawyer will discuss trial strategy with you to determine what evidence can be presented in your defense and whether you should or should not testify at trial. You have the absolute right not to testify and in some situations it may be better that you don’t. You should discuss this with your lawyer before the trial.

What is a preliminary hearing?
If your case is a felony charge, meaning that the potential jail sentence is greater than one year, then the next court hearing after the arraignment is a preliminary hearing. The purpose of this hearing is for the Commonwealth to convince the judge that there exists probable cause to believe that a crime has been committed and probable cause to believe that you committed it. If the judge does not find probable cause, your case may be dismissed at this stage, without the need for a trial. If the judge determines that probable cause does exist, he will certify the case up to the Circuit Court, which is the highest level trial court in Virginia, and you will be entitled to a trial by a jury of twelve people.

When does sentencing occur?
If you are ultimately found guilty of the charges pending against you, the judge may set a separate hearing for sentencing in felony cases. At that hearing, additional evidence will be submitted to the judge by the prosecution in an effort to maximize your sentence. Your lawyer will seek to put on evidence that will help reduce or minimize your sentence.

I am innocent of the charges against me; why do I need a lawyer?
Even if you are innocent of the charges against you, it is essential that you hire a lawyer to protect your rights throughout the court process. In court you will be expected to follow the rules of procedure and abide by the rules of evidence, which take many years of education and experience to master. Without a lawyer, you may not be able to present crucial evidence in your own defense or you may have trouble excluding evidence against you that should not be considered by the judge. Lawyers help ensure that innocent people are not convicted of crimes they did not commit.

I admit that I'm guilty and I plan to plead guilty; why do I need a lawyer?
A lawyer can protect your rights and ensure you receive the best deal from the prosecution. Without a lawyer, the Commonwealth is likely to seek the harshest sentence that it can. When you are represented by competent counsel, the prosecutor is much less likely to want to have to try the case and will be more inclined to settle for a plea agreement that is fair to you. A lawyer can advise you whether the prosecutor is offering you a fair deal or whether you might benefit by taking your case to trial in front of the judge.

I admit that I'm guilty, but I still want a trial.
Everyone in this country is entitled to a fair trial following the principles of due process before being convicted or sentenced for the commission of a crime. It is the prosecution’s burden to prove that you are guilty beyond a reasonable doubt. A lawyer can help you determine whether there is enough evidence against you to meet that burden and then help you decide whether you are likely to get a better outcome from a plea bargain or from going to trial. Lawyers often try cases in order to put the Commonwealth to its burden. However, if you have admitted your guilt to your lawyer, your lawyer cannot let you testify if you intend to perjure yourself and say you did not commit the crime.

How can I get a legal separation in Virginia?
Virginia law does not use the term “legal separation.” When one spouse moves out of the marital home, with the intent to remain separate from the other spouse, that constitutes a separation for purposes of later seeking a divorce. When the time comes for the divorce, your sworn testimony of when you separated, along with a corroborating witness to verify the date, is all that is usually needed to establish your date of separation, unless it is in dispute. Some couples choose to enter into a written Separation Agreement that memorializes the date they separated and also stipulates that the separation was by agreement of both parties.

Can I vacate the marital residence or will I be charged with abandonment?
Most divorces start with one person moving out of the marital residence, but there is a risk that the other spouse will claim desertion. A claim of desertion could affect your right to receive spousal support or your share of the marital property and could be a factor in determining custody and visitation of the children. In most cases the mere fact that one spouse moved out of the marital residence is insufficient to prove legal desertion or abandonment.

Can I make my spouse leave the house?
It is difficult to force a spouse out of the marital home. Even if you pay the entire mortgage or rent and utilities, or the property is titled only in your name, or you owned it before the marriage, it is still considered a marital residence. In cases of domestic violence you can seek a Protective Order which may force your spouse out of the home for up to two years. Once a divorce has been filed, you can seek exclusive use and possession of the home, but you must first have grounds for divorce, such as adultery or cruelty.

How much can I expect to receive or pay in spousal support?
Spousal Support (often called Alimony) is based on the income and needs of each party as well as a host of other factors, such as the length of the marriage and standard of living established during the marriage. There is no set formula for calculating spousal support, although some counties have rough guidelines. An attorney can help you determine how much you should request or expect to pay in spousal support.

How much can I expect to receive or pay in child support?
Child support is determined according to set guidelines based on the incomes of both parents, taking into account the cost of daycare and health insurance premiums. Other expenses you may have are not ordinarily considered in the calculation. An attorney can help you calculate the child support guideline amount, also taking into account special circumstances such as self-employment, support of other children, and shared custody arrangements.

Can I take the children with me if I leave the marital home?
This is a question that will have to be answered on a case by case basis. If you leave without the children, this may be considered abandonment of them. If you take the children with you, this may be seen as interfering with the other parent’s relationship with them. In every case you should do what is in the children’s best interest. If you have questions about what is best in your situation, talk to a lawyer first before making any decision.

Can I take the children and leave the area?
This is a tough question. If there is no prior custody order in place, there is usually nothing preventing either parent from taking the children with them when they move out of the area. However, if the other parent objects to the move, this will give that parent grounds to seek immediate custody from the court and ask that the children be returned to the area. It is best to seek the advice of a lawyer if you are contemplating leaving the area with your children so that the facts of your situation can be analyzed from a legal standpoint.

What factors will the court consider in determining custody of the children?
There are a number of factors that the court will consider in determining who should have custody of the minor children. These include the age and physical and mental condition of each child and each parent, the relationship between child and parent, the needs of the child and each parent’s ability to meet those needs, the propensity of each parent to actively support the child’s relationship with the other parent, the reasonable preference of the child, and any history of family abuse. It is recommended that you hire an attorney to help you protect your interests in any custody and visitation proceedings.

What if my spouse is in prison?
If your spouse is incarcerated you can still obtain a divorce, it just might take a little longer. Because your incarcerated spouse is considered an incapacitated person, he or she is entitled to have a Guardian ad litem (GAL) appointed to protect his or her interests. A GAL is an attorney who will act on your spouse’s behalf to make sure his or her rights are protected in the divorce process.

What if I don't know where my spouse is?
You can still get a divorce even if you do not know where your spouse is currently living. Legal notice must be done by publication in the newspaper. Your attorney can assist you with this process.

How long will the divorce take?
Divorce cases can take anywhere from a few weeks to about two years, depending on the circumstances. If both parties are in agreement and you have already been living separate and apart for the requisite time period, the entire divorce process could be done as quickly as within one month, although it usually takes a little longer. If there are issues – such as child custody, support, or division of marital property – that need to be decided by a judge, the divorce could take a year or longer to work through the litigation process.

How much will it cost?
The cost of a divorce will vary widely depending on what is involved and every case is different. If it is determined that your case is an uncontested, no-fault divorce, we offer flat fee plans ranging from between $750 to approximately $1,500 to complete the entire process. If there are contested issues that need to be decided by the court, you will usually need to make an initial deposit of between $5,000 and $10,000 and the case will be billed by the hour. We send monthly invoice statements showing the work that has been done on your case and the amount that has been billed against your account. If the case settles quickly or does not expend your entire deposit you will be refunded the amount remaining in your account. If the initial deposit is insufficient to cover the work, you may be asked to supplement your account. Contested divorces often end up costing more than the initial deposit. At LLH we try to balance the concerns of keeping your cost down while still providing you with excellent legal representation. Our fees are routinely about one-half those of our competitors. The cost of litigation is one factor every client needs to consider when deciding how much certain things are worth fighting over in court. In some cases, attorney’s fees can be recovered from the other spouse.

Is my employer subject to wage and hour laws?
If an employer has gross receipts in excess of five hundred thousand dollars per year, it is subject to Federal wage and hour laws under the Fair Labor Standards Act (FLSA). Smaller “mom-and-pop” type companies are not subject to FLSA. Virginia also has the Virginia Minimum Wage Act, which applies to all companies operating in the Commonwealth of Virginia and requires them to pay minimum wages, but does not address overtime issues.

Does my employer have to pay me for my break time?
Yes, unless it is long enough for you to take lunch or for the time to be principally beneficial to you instead of your employer. Breaks for which you should be paid typically include quick coffee breaks, bathroom breaks, and brief periods of down-time, such as when machinery or computers are down. For longer breaks, your employer could ask you to be “off-the-clock” and you would not be paid.

When am I entitled to overtime?
Unless you are an exempt employee, for every hour you work in excess of 40 hours per work week, your employer must pay time-and-a-half of your regular rate.

How is my regular rate calculated if I receive base pay plus commission?
Your regular hourly rate is based on your compensation from all sources. Overtime pay would equal one-and-a-half times this regular rate.

Which employees are exempt from overtime pay?
Exempt employees include professional, administrative and executive employees who have such qualities as advanced degrees, discretion over how the job is performed, are predominantly non-manual workers, and have a supervisory role over other employees. Exempt employees must be paid on a salary basis, meaning that they are paid a predetermined amount regardless of how many hours they work.

My employer asked me to sign a Non-Compete Agreement. Is that enforceable?
Non-Compete Agreements are often not enforceable. They are considered to be against public policy and will be strictly construed against an employer. To the extent that such an agreement is upheld, it cannot be broader than necessary to protect the legitimate business interests of an employer.

What should I do if my employer wants me to sign a non-competition agreement?
Often when an employer wants a departing employee to sign a non-competition or non-solicitation agreement, the employer will offer the employee a severance package in exchange for signing such agreements. An attorney can help negotiate a severance package and advise you on the terms of any agreements with the employer.

I am injured or sick and need time off from work. What are my rights?
Under the Family and Medical Leave Act (FMLA), employees are entitled to take up to twelve weeks of leave for a serious health condition of their own or of an immediate family member. You may be paid for any leave time you have accrued, but the remainder of your leave may be unpaid. If you are fired or demoted while out on sick leave, you should speak to a lawyer to protect your rights.

What rights do I have as an employee with a disability?
Under the Americans with Disabilities Act of 1990 (ADA), your employer must provide reasonable accommodations for your disability. A reasonable accommodation might include special equipment that allows you to perform your job or a flexible work schedule to accommodate frequent doctor appointments, so long as it is not an undue burden on the employer to do so.

I was fired for no good reason. I think my employer just didn't like me. Can I sue for wrongful discharge?
Virginia is an at-will employment state. People can be fired for any reason or for no reason, but cannot be fired for a discriminatory or retaliatory reason. If you were fired for no reason or for a purely financial downsizing, you may be entitled to unemployment compensation (see below). However, if you were fired after complaining about actual or perceived discrimination or after disclosing unlawful practices of your employer (whistleblower), you may be the victim of unlawful retaliation. If you had not complained previously but believe you were fired because your employer just did not like you, you are only protected if they fired you based on your inclusion in a protected class, such as those based on your race, gender, age, national origin, or religion. Employers are allowed to discriminate based on other factors, such as sexual orientation, political affiliation, or drug abuse.

What should I do if I think I have been the victim of sexual harassment or a hostile work environment?
Employers are required to have a sexual harassment policy in place and employers must follow their own set procedures. A claim of a hostile work environment must demonstrate that the harassment was severe and pervasive. If you think you may have been the victim of sexual harassment or a hostile work environment, you should speak with a lawyer to determine the best course of action.

Am I eligible for Unemployment Compensation and what will I receive?
If you were laid off from work due to an employer’s downsizing and through no fault of your own, you may be eligible to receive unemployment compensation. The maximum recovery is approximately $15,000 over 6 months, but it could be less based on your income. If your former employer states that you were fired for cause, it is their burden to show you were fired for willful misconduct, such as insubordination, stealing lying, or missing work, not simply incompetence. To apply for unemployment compensation, file an application with the Virginia Employment Commission (VEC). You will be entitled to a telephone hearing and have numerous appeal opportunities if you are not satisfied with the outcome. Your lawyer can represent you are these hearings to ensure that your legal rights are adequately protected.

I am an employer and have been wrongly accused of discrimination. Can you help?
Our attorneys can help you whether you are an employee or an employer to make sure that your rights are protected. Claims of discrimination or other allegations can be a blow to the bottom line, even if they are false. Skilled counsel can help keep your liability to a minimum.

What is an expungement? An expungement is the clearing of all court and police records relating to an arrest and charges of crimes for which you were ultimately exonerated. The records will literally be wiped from the computer databases, as if they never existed.

What will an expungement do for me? An expungment allows you to legally state that you were never arrested or charged with the particular crime, the records of which have been expunged. When completing questions on job or school applications about whether you have ever been arrested or charged with a crime, you can honestly answer “no” regarding any charges that have been expunged. Furthermore, an expungement prevents anyone else who knows about the expungement from revealing the existence of the charges. To do so itself is a crime.

What types of cases are eligible for an expungement? Only those cases in which the charges were dropped by the prosecutor, or where you were found not guilty after a trial, or which were “otherwise dismissed” are eligible for expungement. If you pled guilty, you are not eligible to have that record expunged. Most dismissals, unfortunately, do not qualify under the “otherwise dismissed” category because they usually involve a guilty plea as part of an agreement for the charges to later be dismissed. For instance, if you performed community service, were ordered to attend anger management, or paid restitution, you are probably not eligible for an expungement. To know for sure whether or not your case qualifies for expungement, call for a free consultation with a lawyer.

What is the process for obtaining an expungement? The expungement process involves filing a Petition in the Circuit Court of the county in which the charge was brought. Then you must get fingerprinted at a police station. The fingerprints are processed by the state police and forwarded to the court. Once the fingerprints are received, a hearing can be scheduled wherein the attorney for the Commonwealth may object to the expungement. Our attorneys can help you present your case to the judge as to why the expungement should be granted.

How do I evict a tenant? The procedures for evicting a tenant are spelled out in the Virginia Code and must be followed precisely. They involve providing written notice of the reason for the eviction and allowing the tenant a certain amount of time to correct the problem or vacate the premises. How much time the tenant is given depends on what type of violation is alleged. For nonpayment of the rent, the landlord must give a five-day notice to pay or quit. For other lease violations, such as having a pet or failing to properly maintain the premises, the landlord must allow the tenant twenty-one days to remedy the situation or the lease can be terminated after thirty days. If the violation is not something that can be remedied, then a thirty-day notice may be appropriate. If the tenant fails to remedy the problem or vacate within the specified time period, then the landlord must file a Summons for Unlawful Detainer with the General District Court in the county in which the rental property is located. Because the eviction process is very specific and any error – however minor – can result in the dismissal of your case, you should hire a lawyer who is familiar with the procedure to assist you.

What are my rights as a tenant if I haven’t paid the rent? If you get behind on your rent, you are entitled to a five-day pay or quit notice before the landlord can take legal action to evict you. If you can pay the rent within the five days, then the landlord cannot take any further action against you. If you are unable to pay within the five days, the landlord may file an eviction action, called an Unlawful Detainer. If you are able to pay all the money owed on or before the first court date noted on the summons, then the case against you must be dismissed. This is commonly referred to as the tenant’s right of redemption. In order to “redeem” your tenancy, you must pay the full rent, late fees, court costs, and attorney’s fees and be sure to bring to the judge’s attention that you have done so. Counterclaims you may have against the landlord, such as failure to make necessary repairs, do not excuse your obligation to pay rent in Virginia, as they might in other states. Unless you have paid your rent into escrow with the court, as discussed below, any nonpayment of rent will almost always result in an eviction, if the landlord has followed the proper procedures.

How can I force my landlord to make necessary repairs, such as if the furnace is not working in the winter or there is an infestation of rodents? If your landlord is subject to the Virginia Residential Landlord and Tenant Act, you have the right to file an action, called a Tenant’s Assertion, to bring these issues before a judge. To do so, you must first provide written notice to the landlord of what the problems are and what you expect him to do about them. If the problems have not been remedied after reasonable notice, then you must pay your rent to the court within five days of when it is due. In Virginia, if you fail to pay the rent to the court or to the landlord, the landlord will be entitled to evict you no matter how bad the conditions are. You may want to speak with a lawyer to determine whether this remedy is available to you and how to proceed. In all cases it can help to contact your local code enforcement office. In Fairfax County check out: Neighborhood Concerns.

What do I have to prove to win my case?
If your case goes to trial you will have to prove that your injuries were caused by the negligence of someone else and that, as a result of your injuries, you suffered some monetary losses, such as lost wages and medical bills, or nonmonetary damage, such as pain and suffering. Your attorney will ensure that all of the elements of your case are presented. Then it will be up the judge or jury to decide how much you will be awarded.

Why might an attorney not take my case?
Because personal injury cases are a gamble for the attorney, the value of your case must be weighed by assessing three primary factors: first, the likelihood that a judge or jury will find that the other party is legally responsible for your injuries; second, the dollar value that a judge or jury is likely to place on your injuries; and third, whether we can ultimately collect a judgment from the defendant through, for example, an insurance policy. Sometimes it is difficult to prove that the defendant directly caused the injuries. Sometimes the injuries are too slight to be worth a large enough recovery in relation to the amount of work required to win or settle the case. In other cases the client may have a slam dunk and very valuable case, but the defendant is not able to pay and is not covered by insurance. This makes collecting any award difficult and an attorney is less likely to want to take the case on a contingency basis.

What could keep me from collecting?
There are a number of reasons why you may not be compensated for your injury, even if it was caused by someone else’s negligence. If you waited to too long to bring your claim, you may be barred by the statute of limitations. If it is shown that you also contributed to your injury through your own negligence, even if you were only 1% at fault and the other party was 99% at fault, the judge or jury could find that the legal doctrine of contributory negligence bars you from collecting anything. As mentioned above, you could have a very good case, but be unable to collect because the defendant simply does not have the income or assets to pay a judgment or the defendant who caused your injuries cannot be located.

Will I have to pay a fee for legal services?
Personal injury cases are ordinarily taken on a contingency basis. This means that your lawyer does not get paid unless you recover money for your injuries. The lawyer’s fees are typically about 40% of the total amount you are awarded. In addition, you are responsible for covering any costs of the case, such as court filing fees, expert witness fees, court reporters, and incidentals such as couriers and copying charges. In some cases our firm will advance those costs and will be reimbursed from the proceeds of any settlement or judgment obtained in your case. Attorneys in Virginia are ethically forbidden to finance a client’s litigation without the expectation of being reimbursed for those costs.

Do I really need a lawyer for a Reckless Driving charge? Unlike a speeding ticket, reckless driving is a criminal offense. Most reckless driving charges are based on speeding more than twenty miles per hour over the limit. While some people view this as no more serious than a routine speeding ticket, reckless driving by speed is taken very seriously in Virginia and judges can sentence people to jail time for it, and routinely do so if you were driving more than 90 miles per hour. However, there are ways for your attorney to persuade the Commonwealth to reduce the speed with which you are charged in order to mitigate the penalties. Our attorneys are experienced in handling traffic cases and will know how to best defend you.

Is DUI (Driving Under the Influence) the same as DWI (Driving While Intoxicated)? These terms are essentially used interchangeably in Virginia. Police will typically charge a person with driving while intoxicated if a person has been drinking alcohol, while they will call it driving under the influence if the person has been using drugs.

What should I know about DUI or DWI? If you plead guilty or are otherwise convicted of DUI or DWI, you will automatically have your license suspended for one year. If you have prior DUI convictions, or if you refused to take the breath test or blood alcohol test, your suspension period may be longer. This is a mandatory penalty and the judges have no discretion to reduce it. However, you may be able to obtain a restricted license so that you can get to school or work. An attorney can help you present your case in such a way as to maximize the likelihood that you will obtain a restricted license.

I was caught driving on a suspended license. Is there anything you can do to help me? There are strict requirements in the Virginia Code regarding the notice that is required to be given before you can be convicted of driving on a suspended license. If you did not have actual notice that your license was suspended, our attorneys may be able to help clear you of these charges. In addition, if the police did not have a valid reason to pull you over in the first place, you may be able to have any evidence of your driving on a suspended license suppressed. Call for a free consultation with one of our experienced attorneys who can determine what defenses you might have.

How does the whole point system work? For being a good driver, you are awarded one positive point on your driving record for each year, up to a maximum of five points. If you voluntarily attend a DMV-approved driving school, you will receive five positive points. On the contrary, if you have a traffic violation, you are penalized with negative points, depending on the severity of the charge. If you accumulate 12 points in 12 months or 18 points in 24 months, DMV will require you to take a driver’s improvement course in order to avoid having your license suspended. If you accumulate 18 points in 12 months or 24 points in 24 months, DMV will automatically suspend your license for 90 days without the opportunity for a restricted license. You will then be placed on driving probation for six months and you will have to take a driving improvement course before getting your license restored.

Do I need a lawyer for a traffic infraction? Speeding tickets, running red lights, and other minor traffic infractions are generally punishable only by monetary fines, so the cost of hiring a lawyer may be more than the fine you are facing. On the other hand, while you may only face a small fine in the short-run by not contesting a traffic infraction, long-term you may be saddled with increased auto insurance premiums, monitoring by DMV, or civil fees imposed by DMV for excessive accumulation of infractions. Especially if you have a high number of points on your record, it may be important to dispute the charge, in which case, it can be well worth the price you pay to hire a lawyer. More serious traffic offenses, such as reckless driving, hit-and-run, and DUI, are traffic misdemeanors for which you could face jail time, and therefore, it is imperative that you hire a well-qualified attorney to protect your rights.