Schmergel & Mersberger, PLCFindLaw IM Template2024-03-18T17:55:13Zhttps://www.smplclaw.com/feed/atom/WordPressOn Behalf of Schmergel & Mersberger, PLChttps://www.smplclaw.com/?p=485602024-03-18T17:55:13Z2024-03-18T17:55:13Zcases where males are victims of domestic violence, a female abuser is more likely to make up an allegation against the male.
In such cases, what the abuser is doing is manipulating and threatening their victim so the cycle of abuse can continue.
The important thing to remember is that every allegation of domestic violence must be taken seriously both for the protection of the victim and the accused.
As with any criminal case, those accused of a charge related to domestic violence are innocent until the prosecutor proves them guilty beyond a reasonable doubt.
Any story of domestic violence must therefore withstand scrutiny. Virginians can and should question whether the victim has a motive to make up or exaggerate allegations.
As the George Mason study suggests, perhaps the alleged victim is trying to cover up their own wrongdoing. To give another common example, perhaps the alleged victim is trying to get an advantage in a family law case.
Northern Virginia residents should take domestic violence charges seriously
Even a first-time criminal charge related to domestic violence can have serious and far-reaching consequences. Northern Virginia residents arrested for domestic violence should make sure they understand all of their legal options in any ensuing criminal case.
They may need to prepare to disprove or at least cast a reasonable doubt on the allegations against them to protect their freedom, their relationship with their children and their personal and professional opportunities.]]>On Behalf of Schmergel & Mersberger, PLChttps://www.smplclaw.com/?p=485582024-03-14T14:55:11Z2024-03-14T14:55:11Zfirst DUI offense in Virginia will typically be classified as a Class 1 misdemeanor, which may result in a fine of $250 to $2,500, a minimum license suspension of one year, and a mandatory alcohol education course.
Defending against DUI charges
If you are facing DUI charges, there are several potential ways to defend against these charges. Here are a few of the most common defenses to DUI charges in Virginia:
Lack of probable cause: Law enforcement must have probable cause to pull you over and arrest you on DUI charges. This means that the officer must have a reasonable belief based on the totality of the circumstances that you were driving under the influence of drugs or alcohol. If an officer arrests you without probable cause, the stop itself would be considered illegal, and any evidence gathered during that stop would be inadmissible.
Inaccurate breath tests: Breathalyzer test results are notorious for being inaccurate due to improper calibration of the testing device or improper administration of the test.
Unreliable field sobriety tests: Field sobriety tests are also often unreliable due to improper administration of the tests or the officer’s improper judgment. Additionally, certain medical conditions or disabilities can prevent drivers from being able to successfully perform these tests.
If you have been charged with a DUI, it is important to write down the details of your traffic stop and arrest and identify any potential witnesses as soon as possible after the incident. These details can help your attorney come up with a strategy to defend you in court.]]>On Behalf of Schmergel & Mersberger, PLChttps://www.smplclaw.com/?p=485562024-03-14T14:47:08Z2024-03-14T14:47:08ZVirginia courts will often award spousal support to the spouse who earns less money if the couple gets divorced. However, spousal support is not a given in any divorce.
Factors impacting spousal support
Family law courts will only award spousal support if it deems it necessary. If the court determines that spousal support is necessary, it will consider several factors when determining what type of support to award, the amount to award, and the duration of the payments. Some of these factors include:
Duration of the marriage
Marital standard of living
Age and health of the divorcing spouses
Incomes, property interests and financial needs of the divorcing spouses
Contributions made by one spouse toward the other spouse’s increased earning potential or education
Impact on the couple’s children (if the couple has children, it may be better in some cases if one spouse stays home)
Does fault impact spousal support?
The state of Virginia allows for at-fault divorces. In cases involving permanent spousal support, the court may also consider fault when determining whether to award spousal support, particularly adultery. Generally, a spouse proven to be having an affair is not likely to receive spousal support. However, courts may still award spousal support based on each spouse’s fault and economic circumstances.]]>On Behalf of Schmergel & Mersberger, PLChttps://www.smplclaw.com/?p=485542024-03-05T21:03:54Z2024-03-05T21:03:54ZDUI or possession charges you may be concerned about the possibility of being charged even without having alcohol or illegal drugs in your system. This situation can arise due to several factors, including the type of tests used, the timing of the tests and the evidence presented against you.
DUI charges
In Virginia, driving under the influence is illegal, and the legal limit for blood alcohol concentration is 0.08%. However, you can still be charged with DUI if an officer believes your ability to drive was impaired, regardless of your BAC.
Testing for alcohol and cocaine
Chemical breath tests, commonly used to measure BAC, may not always be accurate due to numerous factors. False positives can occur due to medical conditions, mouthwash, medication or calibration errors. Blood tests, while more accurate, have limitations in detecting alcohol hours after consumption, potentially resulting in false negatives.
Urine tests, used to detect cocaine metabolites, have their limitations. They may show positive results even if cocaine was used days before, and false positives or negatives are possible. Constructive possession charges can arise if you were aware of and had access to the substance, even if not physically on you.
BAC level-based charges?
It is essential to note that being charged with DUI does not solely rely on BAC levels. If your driving ability is impaired, you can still face charges, even with a BAC below 0.08%.
Possession charges
Possession of controlled substances, such as cocaine, is illegal in Virginia. Cocaine possession is a felony carrying severe penalties. Proof of possession can be physical, where the substance is found on your person or property, or constructive, where you had knowledge and control over the substance.
Defenses may include challenging probable cause, asserting constitutional rights violations, disputing test accuracy, providing alternative explanations, proving lack of impairment or demonstrating lack of knowledge or control. Defenses also include suppressing evidence obtained improperly and negotiating with prosecutors to drop or lessen charges.]]>On Behalf of Schmergel & Mersberger, PLChttps://www.smplclaw.com/?p=485502024-03-04T21:07:46Z2024-03-04T21:07:46ZVirginia operates under an implied consent law, meaning that drivers, by virtue of using the state’s roads, agree to undergo breath or blood tests when lawfully arrested for DUI. So, what are the consequences if you choose to decline these tests?
Under Virginia Code Section 18.2-268.3, refusing DUI testing constitutes a civil offense. For a first offense, the individual faces a 1-year driver’s license suspension, an additional penalty on top of any suspension imposed for the DUI charge. Subsequent refusals within a 10-year period escalate to a Class 1 misdemeanor. This results in potential jail time of up to 1 year, fines reaching $2,500 and a 3-year license suspension, again in addition to DUI penalties.
Refusal as admissible evidence
Beyond civil penalties, the ramifications extend to the criminal realm. According to Virginia Code, if you refuse DUI testing after arrest, prosecutors can present this refusal as evidence of guilt during trial. The court may infer that the refusal implies consciousness of intoxication and an attempt to evade self-incrimination.
Limiting defense options
Refusing DUI testing may compromise your defense strategy too. By not having test results, you forfeit the opportunity to challenge the accuracy or reliability of the BAC measurement. Issues like calibration errors, medical conditions, etc., which limit your ability to question the validity of the evidence.
No guarantee against conviction
Contrary to belief, refusing DUI testing does not assure immunity from a DUI conviction. Prosecutors can still build a case using alternative evidence, such as the arresting officer’s testimony on your behavior, appearance, speech and performance on field sobriety tests. Witness accounts, expert testimonies estimating BAC and video or audio recordings also become pivotal in establishing guilt.
Refusing DUI testing in Virginia brings serious consequences. It leads to civil penalties, the admissibility of refusal as evidence, restricted defense options and does not guarantee protection against a DUI conviction. Therefore, careful consideration of the potential implications is essential when faced with the decision to undergo testing.]]>On Behalf of Schmergel & Mersberger, PLChttps://www.smplclaw.com/?p=485482024-02-29T22:05:48Z2024-02-29T22:05:48Za negative effect on the practice as a whole and impact partners, staff, and even patients. The following steps can help mitigate this risk.
#1: Proactive steps are important
The adage an ounce of prevention is worth a pound of cure holds true in more than just the medical world. This practice is also useful when it comes to protecting business interests. There are two options within family law that can help protect these interests when it comes to divorce:
Prenuptial agreement. When valid, the parties can use this legal contract to address how they will handle assets like business interests, including those tied to a medical practice, during a divorce.
Postnuptial agreement. A relatively new option in the family law world, a postnuptial agreement can achieve the same goals as a prenuptial agreement.
The key difference between these agreements is timing. The parties draft and sign a prenuptial agreement prior to the marriage, a postnuptial during the marriage.
#2: Know your priorities
Those who are going through a divorce, with or without the benefit of a pre or postnuptial agreement, are wise to get a thorough grasp on their assets. Depending on the details of your case, the law may consider your business interests tied to the medical practice a marital asset subject to division during divorce. You still have options to preserve this asset even if this is the case.
One option is to offer another asset of similar value in exchange for full retention of the business interests tied to the practice. This could mean the party who wishes to retain the business interests tied to the practice offer the family home, a vacation property, or a portion of retirement assets or other investments so the business interests remain intact.
This is just one consideration when navigating the asset division determination portion of the divorce proceeding. An attorney experienced in this area of the law can provide guidance on this and other matters, working to better ensure your interests are protected and reduce the risk of any surprises after the divorce is finalized.]]>On Behalf of Schmergel & Mersberger, PLChttps://www.smplclaw.com/?p=485522024-03-04T21:11:58Z2024-02-29T21:10:33Zsafeguarding your interests throughout the divorce process.
Defining digital assets
Digital assets reside in the digital realm or are stored on online platforms, and they take various forms, such as cryptocurrency (Bitcoin, Ethereum, etc.), websites (blogs, e-commerce sites, etc.), social media accounts (Facebook, Twitter, etc.) and NFTs (CryptoKitties, NBA Top Shot, etc.).
Virginia’s approach to digital asset division
Virginia follows an equitable distribution model. This model aims for a fair and just allocation of marital property based on diverse factors. Digital assets, like other property, are classified as either marital or separate based on their acquisition. Marital assets, acquired during marriage or with marital funds, are subject to equitable distribution.
Determining the fair market value of digital assets poses challenges due to volatility and regulatory gaps. Courts may rely on expert testimony, appraisals, market data or transaction records. These experts provide evidence to the court and post-valuation, the courts distribute digital assets based on equitable distribution factors. This could involve assigning each spouse their share, a buyout arrangement or selling assets and dividing the proceeds.
Protecting your digital assets
To safeguard your digital assets during divorce proceedings, disclose all assets transparently. Gather and preserve documentation related to ownership, classification and value. Engage a reputable digital asset expert for accurate valuation. Consider negotiation with your spouse for a mutually agreeable settlement. By understanding Virginia's approach and taking proactive measures, you can navigate the complexities of digital asset division and secure a fair outcome in your high-asset divorce.]]>On Behalf of Schmergel & Mersberger, PLChttps://www.smplclaw.com/?p=485452024-02-19T19:29:56Z2024-02-19T19:29:56ZMiranda warning?
Miranda basics
The name “Miranda” part refers to the name of a U.S. Supreme Court case that was decided in 1966, in which the court referred to some of the requirements that law enforcement officials must adhere to before starting a custodial interrogation of a criminal suspect. The first part – the right to remain silent – is just one part. Suspects must also be notified that they have the right to speak with an attorney, have an attorney present when being questioned and that, if they cannot afford an attorney, one will be provided.
As some of our readers have probably guessed, these warnings are given to ensure that a criminal suspect is aware of his constitutional rights. The Fifth Amendment protects suspects from incriminating themselves – thus the notification of the right to remain silent. The Sixth Amendment protects a suspect’s right to counsel – thus the notifications about having an attorney.
The violation of a criminal suspect’s constitutional rights is one of the most common ways that criminal cases end up getting dismissed. And, there are many rights that might come into play in any given case. If you are facing criminal charges in Virginia, be sure to have the facts of your case analyzed for potential constitutional violations.]]>On Behalf of Schmergel & Mersberger, PLChttps://www.smplclaw.com/?p=485432024-02-13T11:47:39Z2024-02-15T11:46:03Zbasic rules of asset division that apply to all Virginia divorces.
The basic rule
Virginia, like most states, uses the “equitable division” model when splitting marital property. This rule requires the court to divide the marital property in the most equitable fashion possible given the entire picture of the couple’s finances.
This rule, which applies to all marriages, does not mean that the court must strive for an equal or 50/50 division of marital assets; rather, the court must ensure that the asset division is fair for both spouses.
Marital v. separate property
The asset division process recognizes two types of property: “marital” and “separate.” Separate property is property that belonged to one spouse prior to the marriage or was acquired by one spouse after the marriage using that spouse’s income or other asset.
A marital asset is an asset that is purchased with income earned or an asset that belonged to both spouses during the marriage. A court can only divide marital property.
Thus, the court’s first task is determining which assets are marital and which are separate. After making this determination, the court must then divide the property according to Michigan’s “equitable distribution” rule.
Factors considered in dividing property
The court has many factors to consider in deciding on an equitable division of marital assets. These factors include:
each spouse’s monetary and non-monetary contributions to the well-being of the family and to the acquisition, care, and maintenance of the marital property
the length of the marriage
the spouses' age and physical and mental condition
how and when the spouses acquired the marital property
each spouse's debts and liabilities
the liquid or nonliquid character of all marital property (cash is the most common "liquid" property).
Bad behavior, such as an affair, criminal conduct, or domestic abuse may also affect the court’s decision. Each spouse's contributions, monetary and non-monetary, to the well-being of the family and to the acquisition, care, and maintenance of the marital property, the length of the marriage, the spouses' age and physical and mental condition, how and when the spouses acquired the marital property each spouse's debts and liabilities
The liquid or nonliquid character of all marital property (cash is the most common "liquid" property), and tax consequences of the property
The court will also factor in bad behavior, such as adultery, commission of a crime, or other behavior whether the other spouse was at fault.
The list of factors that can be considered by the trial court in deciding how to divide marital property is very long. Anyone in a high-asset marriage should consider the list of factors very carefully before proceeding to dissolve their marriage.
]]>On Behalf of Schmergel & Mersberger, PLChttps://www.smplclaw.com/?p=485412024-02-13T11:45:27Z2024-02-14T11:43:22Zprofessional appraiser can help a couple solve these valuation issues.
Choosing an appraiser
Appraisers are usually judged by their adherence to professional ethical standards and their accumulated expertise.
The American Appraisal Institute publishes a set of written ethical standards called Uniform Standards of Professional Appraisal Practice (“USPAP”). Most reliable appraisal firms openly state that they follow the USPAP guidelines.
An appraiser’s relative expertise can best be judged by the opinion of former clients or attorneys that have used their services.
The role of an appraiser in a divorce
According to USPAP, the appraiser’s role is to provide an impartial opinion on the fair market value of the family home, assuming that both the seller and buyer are both willing and informed about current market conditions.
An appraiser will first make a thorough inspection of the home and will carefully measure the dimensions of the lot and each room. The appraiser will note the presence of certain features such as a remodeled kitchen or master bedroom suite.
The appraiser will compare the features of the subject property to other properties that have recently changed hands in the neighborhood.
After completing the inspection and review of sales of comparable properties, the appraiser will deliver a written report providing an impartial opinion as to the fair market value of the property.
Uses of appraiser’s opinionX
The appraisers report can be used in different ways. If both parties agree with the appraiser’s opinion as to value, they can include the net value of the home in their inventory of assets. Another option is to use the appraiser to negotiate the sale of the home to a third party. If neither option works, the appraiser’s report will become an exhibit at trial and will be used by the judge to divide the couple’s assets.
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