Common Questions About Personal Injury, Family Law, and Criminal Defense in Virginia
Do you have questions about how Virginia laws apply to your situation or what you can do to reach your legal goals after an accident, arrest, or divorce? Our experienced attorneys in Fairfax answer some of the most frequently asked questions from clients here. If you don’t see the answer to your question here, or if you need more information about your rights, reach out to us today at 877-652-1553.
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Should I file a wrongful death claim even if the at-fault driver has been charged with a crime?
When a negligent driver is responsible for killing another person, he could be charged with murder or manslaughter and face consequences such as jail time, loss of driving privileges, and fines. Although a successful conviction in the criminal courts may bring a sense of justice or closure for surviving family members, it doesn’t provide compensation for the victim’s family. That’s why the law allows civil charges to be brought against the person responsible.
Understanding a Civil Claim in Virginia
A civil claim is a legal action brought by one person who seeks to hold another person liable for some harmful act. In a wrongful death claim, the surviving family members file a suit against the person responsible for the accident. The consequences in a civil case are typically monetary, and the at-fault driver must pay compensation to the victim’s family rather than face jail time.
Why You Should File a Wrongful Death Claim in Civil Court
While the at-fault driver may already be facing charges in criminal court, a civil action can be significant for surviving family members for a few reasons. First, the burden of proof is not as great in a civil case. Rather than having to prove the at-fault driver is guilty “beyond reasonable doubt,” guilt simply needs to be shown “by a preponderance of evidence.” This means, the defendant is more likely guilty than he is not, which is a much lighter burden to prove.
Second, surviving family members can obtain compensation to help address financial costs associated to their loved one’s death. If a driver is found to be responsible for another’s death, he could be obligated to provide compensation for:
- Funeral and burial expenses
- Medical expenses incurred before the death
- Sorrow and mental anguish
- Loss of care, comfort, companionship, and guidance
- Value of lost wages that the deceased could have been reasonably expected to earn if he or she had lived
If someone you love has died as the result of another driver’s negligent behavior, it may be possible to file a wrongful death claim. These claims can provide both justice and compensation that you and other surviving family members need to pick up the pieces and begin to move forward after a sudden death. Even if you aren’t sure if you have a claim, our legal team can explain your rights and answer your questions. Call our Fairfax office, or take a moment to fill out the contact form on this page to arrange a free case review today.
How is wrongful death defined in Virginia?
Any time a loved one dies, families are faced with a distressing and emotional grieving process. To learn that your loved one was lost because of the careless action of another person can make that time even more difficult. Families often want answers, and they want to hold that person accountable. To that end, state law allows surviving family members to file a civil claim against those who caused the death.
What Is a Wrongful Death Claim?
A wrongful death occurs, according to the state of Virginia, when a person dies “by the wrongful act, neglect, or default of any person or corporation.” The claim itself is, in effect, the personal injury claim that the deceased would have been able to pursue had they survived their injuries. Simply, their family members are acting on their behalf. The most common types of wrongful death cases include those involving car accidents, medical malpractice, and defective products.
What Constitutes a Wrongful Death Case in Virginia?
To successfully pursue a wrongful death claim, surviving family members must prove certain facts in court. These include:
- The responsible party owed the deceased a duty of care. This means that he had an obligation to behave in a safe and appropriate manner.
- The responsible party breached that duty. He failed to adhere to rules and law, acting in a careless or negligent manner.
- The responsible party’s action caused the death. Not only must it be shown that the person failed to uphold their duty of care, but that failure must have led directly to the death.
The Impact of a Wrongful Death Claim
Considering a legal claim after the death of a loved one can seem overwhelming. These claims are important, though, for both surviving family members and all those in Virginia. For a family member, awards for damages can provide vital compensation that is necessary to address the changing needs and new challenges brought about by the loved one’s death. Additionally, a judgment against those responsible sends a clear message about the consequences of disregarding the safety of the community. It may prevent that same offender from further poor behavior and discourage others from acting in a similar unsafe manner, potentially saving lives in the future.
If your loved one has died in an accident, a wrongful death claim may bring your family the peace of mind and compensation you need to begin to move forward. Speak with the experienced legal team at Kearney, Freeman, Fogarty & Joshi, PLLC to learn how we may be able to help during this difficult time.
What will happen to my health insurance coverage if I get a divorce?
Health insurance is expensive. If both spouses have their own insurance plans, health insurance coverage isn’t typically an issue during a divorce.
However, both spouses may have health insurance from one spouse’s employer. In this situation, a divorcing couple must decide what will happen to their health insurance when the divorce is final.
Health Insurance While Divorce Is Pending
Until your divorce is final, your health insurance coverage should continue as it was before filing for divorce. Whether you are the spouse who petitioned the court to end the marriage or the spouse responding to the divorce complaint, your health insurance should remain unchanged.
Virginia law specifically provides this protection to both spouses by allowing the court to order the continuation of health insurance coverage while divorce proceedings are pending. Therefore, if a spouse tries to end health insurance coverage for the other spouse before the divorce is finalized, and the insured spouse objects to the end of that coverage, the court may order health insurance to continue.
Health Insurance After Divorce
Health insurance coverage for a spouse should continue during a divorce, but it will not continue unchanged after a divorce. Health insurance companies allow spouses to cover family members on their health insurance policies, but once you are divorced, you are no longer legally related, and your ex-spouse cannot include you on a health insurance policy.
After the divorce, your health insurance coverage options may include getting:
- Health insurance through your own employer. A divorce is a triggering event that allows you to sign up for health insurance outside of your open enrollment period.
- COBRA coverage for a period of up to 36 months. You must notify the administrator of your ex-spouse’s health insurance plan of your decision to use COBRA within 60 days of your divorce.
- Private health insurance. Private insurance can be very expensive. While your ex-spouse may not have to pay your health insurance premiums, the cost should be considered when determining spousal support.
Contact KFFJ Law
Don’t get caught by surprise with substantial health insurance costs after a divorce. Instead, make sure your health insurance needs are considered in your Virginia divorce agreement. Please read our free article for more tips on planning for divorce, or contact us today to get your questions answered.
What happens if I’m charged with domestic assault and my spouse won’t cooperate with the government?
Your spouse’s lack of cooperation does not mean the charges against you will be dropped. You may still face severe penalties if you’re convicted, so you should still take these charges seriously. It is the government, not your spouse, that has authority to bring criminal charges against you and will decide whether to proceed with a criminal case or drop the charges.
Domestic Assault Evidence
To be convicted of domestic assault, the government must prove its case against you beyond a reasonable doubt. Often, this includes using your spouse’s testimony. However, some assault victims recant their accusations and statements to the police because they fear future retaliation from the abuser or out of a sense of guilt. Even if your spouse recants her statements or refuses to provide testimony, the government may build its case by providing evidence, including:
- Police reports
- Medical records
- Photographs of injuries
- 911 recordings
- Social media posts by you, your spouse, or others
- Witness testimony if others were present at the time of the suspected assault
It’s likely that your spouse has valuable testimony about the abusive incident or ongoing domestic violence that the Commonwealth of Virginia wants to use in the case against you. If your spouse refuses to cooperate, the Commonwealth may lose powerful testimony, but it may still win its case.
Talk to a Criminal Defense Lawyer About Your Rights
If your spouse recants her testimony or refuses to cooperate with the government, it is still important that you to take domestic violence charges seriously and talk to a Fairfax criminal defense lawyer as soon as possible.
If you are convicted of domestic assault in Virginia, you could spend time in jail, pay a significant fine, lose any job-related security clearance, and possibly lose your job. Contact the criminal defense lawyers of Kearney, Freeman, Fogarty & Joshi to learn more about your rights and to make sure your rights are protected.
What can I recover in a Virginia boat accident injury case?
Boat accidents are like other types of Virginia vehicle crashes. If you can prove that someone else’s negligence caused your accident injuries, you can recover damages.
Boat Accident Negligence
If you were hurt in a boating accident that wasn’t your fault, you need to show that the at-fault party was negligent. You must establish that:
- The person who caused the boat accident owed you a duty of care. Boat operators and owners owe their passengers and others on the water a duty of care.
- The person who caused the boat accident breached the duty of care. Boat operators and owners who fail to act like other reasonable boat operators and owners would act in similar circumstances breach their duty of care.
- You were hurt because of the breach of the duty of care. You need to prove that the at-fault party’s negligence was a primary factor in causing your injuries, and your injuries would not have happened but for the boat operator’s or owner’s breach of the duty of care.
Some examples of negligence in boat accident cases include boating while intoxicated, distracted boating, failing to keep a proper lookout, and any other situation where a boat operator or owner fails to use reasonable care.
Boat Accident Damages
Once you establish that someone else’s negligence caused your boat accident injuries, you need to prove the value of your injury. Your boat accident lawyer will consider all of your damages, including:
- Healthcare costs. All of your past, present, and future medical expenses related to the accident can be recovered—hospitalizations, surgeries, medications, doctor visits, and physical therapy appointments.
- Lost income. Lost wages, lost benefits, and any income from self-employment that you could not earn due to your injuries should be included in your recovery.
- Physical pain and emotional suffering. These may be your most significant damages, but they may also be the hardest to quantify. An experienced Virginia injury lawyer can look at all of the facts of your case and prove the value of these damages.
- Other costs. Any additional expenses that you prove are directly related to your boat accident injuries should be part of your financial recovery.
If you’re injured on a Virginia waterway, you have the right to recover damages. Protect that right by contacting a boat accident lawyer today for a free, no-obligation consultation. You can reach us by phone, through an online chat, or by filling out our contact form.
Is my spouse’s substance abuse problem relevant in our divorce?
Substance abuse may be relevant to some aspects of your divorce agreement or court decree. Therefore, you should share your spouse’s substance abuse problem with your divorce lawyer as soon as possible.
Substance Abuse as Grounds for Divorce
Substance abuse is not listed as a statutory reason for an at-fault divorce in Virginia. However, if substance abuse leads to a felony conviction, puts you at risk for physical harm, or causes your spouse to desert you, it could be a reason for a fault-based divorce. Otherwise, substance abuse may be the reason that you seek a no-fault divorce.
Since you can seek a no-fault divorce in Virginia, grounds for divorce may not be your primary concern. Instead, you may be worried about the details of your divorce.
How Substance Abuse Impacts a Divorce
In most cases, your spouse’s alcohol or drug addiction will not affect alimony, division of marital property, or division of marital debt. However, if your spouse spent a significant portion of your family money on drugs or alcohol or incurred debt because of his addiction, it could impact alimony and the division of marital assets and debts.
Substance abuse is more likely to impact child custody and visitation. The courts decide child custody issues based on the best interests of the child and not what is equitable for the divorcing spouses. Therefore, if you can prove that it is not in your child’s best interests to spend time with a parent who abuses drugs or alcohol, you may be able to prevent your child from spending unsupervised time with the parent who is not always sober.
If you’re worried about your children’s safety due to your spouse’s substance abuse, our experienced family law attorneys will help you obtain a fair and legal divorce settlement that protects your kids. To learn more, please fill out our online contact form, or call us today.
What defense is possible if I’m charged with statutory rape?
In Virginia, a person under the age of 18 cannot consent to sexual activity, and the penalties for someone who violates the law and has sex with an underage child can be significant. However, there are exceptions to the law, and sexual activity with a teenager is not always a crime.
Virginia Statutory Rape Laws
Several different statutes apply to what is commonly called statutory rape, including:
- Having sexual intercourse with a child who is under the age of 13 is rape, according to Va. Code § 18.2-61
- Having sexual intercourse, oral sex, anal sex, or sexual penetration with an object with a child between the ages of 13 and 15 is a crime, according to Va. Code § 18.2-63
Sexual abuse, incest, exposing oneself to a child, and suggesting an illegal sexual act to a child are also against the law in Virginia.
Defenses to Virginia Statutory Rape Laws
A potential defense depends on the unique circumstances of an individual case. However, some defenses include:
- The ‘Romeo and Juliet’ exception. This exception is used when there is consensual sex between minors who are less than three years apart in age. For example, teens between the ages of 13-15 or 15-17 could have consensual sex, and the penalty is reduced from a felony to a misdemeanor.
- The ‘Marital’ exemption. This allows consensual sex between a minor, 15 years or older, who is married to someone over 18.
Don’t Leave Your Defense to Chance
If you’ve been charged with statutory rape, you may believe you’re morally and ethically innocent. However, if convicted, you face a potentially significant sentence that includes between one year and life in prison and a fine of $2,500 - $100,000. Additionally, you will be required to register as a sex offender. Contact our criminal defense lawyers today to learn more about your rights and what you need to do to protect yourself.
Are punitive damages allowed in Virginia personal injury cases?
Punitive damages, or damages that are meant to punish the defendant rather than compensate the plaintiff, are allowed in Virginia personal injury cases. However, punitive damages are only allowed in specific situations, and they can be very difficult to obtain.
Punitive Damages for Egregious Behavior
Although you may have suffered a very serious injury or your loved one may have been killed in an accident, this doesn’t mean you’ll automatically recover punitive damages. Instead, if you are pursuing a punitive damage award, the court will consider the defendant’s behavior that resulted in your injury.
Punitive damages may be awarded to you if you can prove that the defendant acted with either malice or with willful and wanton disregard for the rights of others. Punitive damages are awarded in addition to compensatory damages. If the defendant’s conduct is not malicious, willful, or wanton, but the defendant failed to use reasonable care, and that resulted in your injury, you may still be able to recover compensatory damages for medical expenses, lost income, and pain and suffering.
Punitive Damage Limits in Virginia
The purpose of punitive damages is to punish the defendant, and this financial support will provide you with compensation over and above the value of your compensatory damages. As with other kinds of damages, you will need to prove the value of the punitive damages you are seeking by providing convincing evidence to the court.
While the exact value of your potential punitive damage award is dependent on the facts of your case and the arguments you make, Virginia law limits the amount of punitive damages to a maximum of $350,000.
Talk to a Personal Injury Lawyer About Punitive Damages
Punitive damages are not awarded in every case. Our experienced Virginia personal injury lawyers will review the facts of your case and provide you with our professional opinion about whether or not you should pursue punitive damages. Call us, or start a live chat to schedule a free, no-obligation consultation to discuss your rights and all of your potential compensation.
Who gets the pet when a couple divorces in Virginia?
In Virginia, a pet is considered personal property. Therefore, unlike child custody which may be shared, a pet will be awarded to one spouse if the court must get involved and make the decision for you.
What the Court Considers When Deciding Pet Custody
If you and your soon to be ex-spouse can’t decide who should have the pet after the divorce, the court will decide. Often the court will consider factors, such as:
- Who is home more often
- Who the pet is most attached to
- Who brings the pet to the vet or groomer
- Who feeds, walks, and plays with the pet
- Who owned the pet prior to marriage (if applicable)
The court may also consider whether one spouse neglected or abused the pet.
Should Pets Be Personal Property?
Because both spouses may share in the care of a pet, some states are considering other ways to assign pet ownership after a divorce and may no longer treat pets as personal property. However, this is not yet the case in the Commonwealth of Virginia. Pets are personal property, and you should be prepared to fight for ownership of your pet if you want the pet to live with you after a divorce.
Talk to Your Divorce Lawyer About Pet Ownership
If keeping your pet is a priority for you, it is important to let your lawyer know. He can work hard to help you keep your pet, as well as help you divide the rest of your property fairly. Contact us today via this website or by phone to learn more.
What’s the best way to hire a criminal defense lawyer?
If you need a criminal defense attorney, the person you hire could play a pivotal role in whether you go to jail, pay significant fines, or face other legal penalties.
What to Look for in a Criminal Defense Attorney
As you consider different attorneys to represent you in your criminal case, it is important to think about:
- Whether the lawyer has experience in the local court system
- Whether the lawyer will explain all of your options to you, so you can make informed decisions
- Whether the lawyer has trial experience and can/will participate in plea bargaining
- Whether the lawyer will be available and willing to answer questions as your case progresses
- Whether the lawyer will represent you if you need to appeal
When you’re making a decision about legal representation, it is often a mistake to hire a lawyer who does not specialize in criminal law. You may have a used a great attorney for a real estate closing or to draft your will, but if you have been charged with a crime, you need a criminal defense lawyer to represent you.
Questions to Ask Before Hiring a Criminal Defense Lawyer
When you’re looking for a criminal defense attorney, it’s important to schedule an initial meeting before you hire anyone. At that meeting, you can get to know the lawyer and how he can help you. You may consider asking questions, including:
- How long have you been practicing criminal defense law?
- How often do you appear in the court where my case will be heard?
- How frequently do you go to trial? How many of your cases end in plea bargains?
- Have you ever handled a case similar to mine before?
- What are my legal options?
- Do you see any potential problems with my defense?
- Who else at the firm will be working on my case?
- Can I call you if I have any questions about my case?
- How are you paid?
If you would like to schedule your first appointment with the experienced Northern Virginia criminal defense lawyers at Kearney, Freeman, Fogarty & Joshi, PLLC, please call us, or fill out our online contact form today.