Blogs from 2024

What You Should Know About Automatic Sealing

In 2021, Virginia passed a law introducing significant reforms to the state's criminal record-sealing policies. Aspects of this law were revised in 2023. This new law provides a valuable opportunity for individuals to move forward without the burden of a criminal history following them.

The automatic sealing provisions of this law will take effect on October 1, 2025.

Expungement vs. Sealing

In Virginia, expungement and sealing generally mean the same thing. Sealing records aims to limit public access to an individual's criminal history. While in some states, expungement completely erases a record, in Virginia, expungement and sealing both serve to limit access to the record in question.

While the record still exists, it will not appear in most background checks. Additionally, these records will be kept in a secure location and are only accessible to a few people and only for a few specific reasons, such as

Automatic Sealing of Records

Starting October 1, 2025, individuals charged with a misdemeanor in Virginia but ultimately not convicted may have their records automatically sealed. A non-conviction can occur under several circumstances, such as an acquittal, dismissed charges, or if the prosecution chooses to drop the case (nolle prosequi).

A note on dismissals: a deferral-dismissal does not qualify for automatic sealing, as this involves a court finding sufficient evidence for a potential conviction before the case is dismissed.

Eligibility for Automatic Sealing for Convictions

Individuals with convictions may also be eligible for the automatic sealing of their records under the new law. Specifically, they may be eligible if at least seven years have passed since the dismissal or conviction and the individual has maintained a clean legal record during this time. This means they must not have been convicted of any laws in Virginia or any other jurisdiction, including the District of Columbia or federal territories, that would necessitate reporting to the Central Criminal Records Exchange.

Requesting Sealing of Records in Virginia

In Virginia, individuals have the right to request the sealing of their criminal records, although the process differs depending on the circumstances of the case. If a record is eligible for automatic sealing due to the new law, individuals do not need to take any action, as the process will begin automatically on October 1, 2025.

However, if an individual believes their record should be sealed sooner or if it falls outside the automatic sealing provisions, they may file a petition with the court.

To initiate this process, individuals should gather relevant documentation, including case numbers, court dates, and any supporting evidence demonstrating that they meet the eligibility criteria. The petition must be submitted to the appropriate circuit court in Virginia, along with any required fees. Once filed, the court will review the request, and a hearing may be scheduled where the individual can present their case to seal the record.

Consider Hiring Legal Representation

It's important to note that the success of such requests can depend on various factors, including the nature of the charges and the individual's legal history. Consulting with a legal professional may provide additional guidance and potentially improve the likelihood of a favorable outcome.

If you have questions about the new criminal record-sealing law set to take effect in 2025, reach out to The Law Offices of Daniel J. Miller. We can help you determine how this law may impact your situation.

Individuals and couples with a high net worth face unique challenges when divorcing. Substantial asset holdings are often more complex than average and may even feature international real estate or offshore accounts. Unlike standard divorce proceedings, high-asset divorces often take longer to resolve due to the complexity of assets involved and the potential for significant financial implications.

High-asset individuals frequently face unique hurdles, such as:

• Complex property division
• Privacy concerns
• Potential for financial disputes
• Tax implications
• Valuation of unique or difficult-to-assess assets

Below, we discuss three significant aspects of divorce that high-net-worth couples should know about before they initiate a divorce.

Understanding Separate vs. Marital Property

In Virginia, property division during a divorce follows the equitable distribution model, which focuses on fair, though not necessarily equal, asset division. Property division settlements can be negotiated directly between parties with the assistance of their lawyers, through third-party mediation, or decided by a judge during litigation.

Before a couple's property is divided, it must first be categorized. Assets are classed as either marital or separate. Marital property includes assets acquired during the marriage, while separate property refers to assets owned individually before the marriage or acquired via inheritance or gift specifically to one spouse.

What About Hybrid Property?

A particularly challenging area is the concept of hybrid or commingled property—assets that have characteristics of both marital and separate property. For instance, if a spouse owned a business before marriage but its value increased during the marriage due to joint efforts, the business might be considered hybrid property, and all or part of it may be subject to division during a divorce. This complexity requires careful evaluation to determine how such assets should be divided.

Tips for preparing for property division when you have significant wealth include:

• Document all your assets thoroughly and carefully
• Keep detailed records, especially if assets are commingled
• Seek the advice of financial advisors and forensic accountants if necessary
• Be proactive about understanding the valuation process for various assets, especially those that may be unique or difficult to appraise
• Obtain appraisals from qualified professionals
• Consult with a tax advisor to get help in understanding the long-term financial impact of property division decisions

Protecting Your Privacy & Confidentiality

High-asset divorces often involve sensitive financial information that can become public through court filings and proceedings. This exposure can be detrimental, potentially affecting personal and professional reputations. Therefore, safeguarding privacy is a top priority.

Legal strategies to ensure confidentiality include opting for mediation or arbitration instead of litigation. These alternative dispute resolution methods offer a more private setting and can prevent sensitive details from becoming public.

Prepare for a Longer-Than-Average Process

High-asset divorces often involve intricate financial issues that require expert analysis. Financial professionals such as forensic accountants and business valuators frequently play critical roles in these cases. Consequently, the divorce process for many high-asset individuals can take longer than usual.

While the average divorce in Virginia is three to six months, a high-asset divorce can take up to a year (or, in some cases, longer).

Issues such as tax obligations, hidden assets, or offshore accounts can significantly complicate divorce proceedings. Addressing these challenges requires strategic planning and professional advice.

If you are facing a high-asset divorce, reach out to our law firm to schedule a consultation with one of our experienced divorce attorneys. We are here to guide you through the divorce process and help you understand how Virginia's divorce laws may impact your case.

What You Need to Know in Virginia

In today's rapidly evolving financial landscape, cryptocurrency has become a significant asset category. Its growing prevalence poses unique challenges in various legal contexts, including divorce proceedings. As more couples encounter the complexities of dividing digital assets like cryptocurrency, understanding how these assets should be handled becomes paramount.

Keep reading to learn more about how to approach the division of cryptocurrency during a divorce.

Understanding Cryptocurrency as a Marital Asset

Cryptocurrency (or "crypto") is a digital or virtual currency that relies on cryptography for security. Part of the appeal of cryptocurrency is that it is incredibly secure and difficult to counterfeit. Many people see crypto as the future.

However, unlike traditional assets, it operates on a decentralized platform, often providing users with a degree of anonymity. This decentralized nature, combined with the challenges of valuation, sets cryptocurrency apart from conventional financial assets when going through a divorce.

Equitable Distribution in VA

In Virginia, the law treats cryptocurrency like any other marital property subject to division upon divorce. Under Virginia's equitable distribution law, the court aims to divide marital assets fairly but not necessarily equally. Part of this process is identifying which property is marital (jointly owned) and which is separate (individually owned and not subject to division).

Marital property includes assets acquired during the marriage, while separate property refers to those owned before marriage or acquired by gift or inheritance. Hybrid assets, commingled between marital and separate holdings, may also be involved.

Factors the court may consider when dividing property in a divorce include:

• The monetary and non-monetary contributions of each spouse to the marital property.
• The duration of the marriage, which can impact the valuation of assets and the division process.
• The age and health of both spouses, as these factors can affect future income and needs.
• The standard of living established during the marriage, which may influence asset division to maintain a similar lifestyle post-divorce.
• The assets and liabilities of each spouse, including debts, which must be accounted for in the division.
• Any specific agreements between the spouses prior to divorce, such as prenuptial agreements, that outline property distribution.

Dividing Cryptocurrency in a Virginia Divorce

Virginia courts approach the division of cryptocurrency by considering several factors within the framework of equitable distribution. The courts may decide to split the assets between parties, assign a value to the cryptocurrency and compensate with other assets, or use a combination of these approaches.

Accurate documentation of cryptocurrency transactions and holdings is vital. This transparency helps present a clear financial picture to the court, facilitating a fair division process.

The Challenge of Valuing Cryptocurrency

Valuing cryptocurrency presents its own set of challenges due to its volatile nature and fluctuating market conditions. An asset’s value can change dramatically within short timeframes, complicating the division process. Thus, an expert valuation is often necessary to ensure an accurate assessment of the holdings at the time of divorce proceedings.

Hidden Cryptocurrency & Legal Remedies

When a spouse attempts to hide cryptocurrency assets, it complicates divorce proceedings. Employing strategies such as thorough financial investigations can mitigate this risk. Failure to disclose such assets can lead to serious consequences, as hiding assets constitutes fraud.

Identifying cryptocurrency holdings can be daunting. If you suspect your spouse owns cryptocurrency, look for common indicators, such as unexplained wealth or transactions. Legal discovery tools like subpoenas or hiring forensic accountants may also be helpful in uncovering hidden digital assets.

Legal remedies for divorce fraud can vary; if you suspect your spouse is hiding cryptocurrency assets, you're encouraged to consult with an experienced attorney to understand the specific options available.

The Importance of Legal Representation

Protecting your financial interests in divorce proceedings is critical, particularly when significant digital assets are involved. The complexities surrounding cryptocurrency can make achieving a swift divorce settlement challenging. A family law attorney well-versed in digital assets (like ours at The Law Offices of Daniel J. Miller) can be an invaluable asset during this process.

We invite you to schedule a consultation with us today to explore how we can assist you in this challenging process.

Understanding Miranda Rights

Miranda rights (also known as Miranda warnings) play a crucial role in the American criminal justice system. Miranda rights are derived from the Fifth Amendment, which guarantees that no person shall be compelled to incriminate themselves. Instituted to protect individuals from self-incrimination during police interrogations, these rights are grounded in the landmark 1966 Supreme Court case Miranda v. Arizona.

The Supreme Court determined that police must inform individuals in custody of their constitutional rights, including the right against self-incrimination and the right to legal counsel, before conducting interrogations.

When law enforcement officers arrest and intend to interrogate someone, they must inform the individual of their rights. These include:

• The right to remain silent
• The warning that anything said can be used against them in court
• The right to an attorney
• If they cannot afford an attorney, a public defender will be appointed

This safeguard helps make individuals aware of their constitutional protections before making any statements that could be self-incriminating.

When Are Officers Required to Issue Miranda Warnings?

In Virginia, as in all U.S. states, the concept of Miranda rights is upheld. State law enforcement officers are mandated to issue Miranda warnings before beginning any custodial interrogation. Failure to do so can have significant implications for the prosecution's case.

Miranda rights are not automatically applied at the time of arrest; they become relevant specifically during the custodial interrogation phase. Therefore, statements made pre-custody or without interrogative context might not invoke the necessity of a Miranda warning.

When Miranda Warnings Are Not Required

Remember, Miranda warnings are unnecessary before an arrest occurs or if someone is not being interrogated post-arrest. For example, when an officer pulls someone over for a DUI stop but has not initiated an arrest, they are not required to read someone their Miranda warning. Similarly, casual conversations or routine booking questions do not require the reading of Miranda rights. Additionally, voluntary statements made by suspects outside of interrogation do not warrant Miranda warnings.

Consequences of Not Reading Miranda Rights

When an arresting officer does not read Miranda rights to a suspect before an interrogation, the consequences can drastically affect any legal proceedings. The primary repercussion is the inadmissibility of any statements or confessions obtained during the interrogation.

The defendant could potentially argue that they were not informed of their rights and, therefore, did not knowingly and voluntarily waive those rights. As a result, any subsequent admission or evidence gathered from these statements may be considered 'fruit of the poisonous tree' and excluded from the trial.

Furthermore, a failure to administer Miranda rights can lead to broader challenges in the prosecution's case. In fact, non-compliance with Miranda requirements may even result in the dismissal of charges.

What to Do If You Believe Your Miranda Rights Were Violated

Miranda rights are a fundamental component of the criminal justice system. Both state and federal laws require these rights to be communicated to those in custody prior to interrogation. If you suspect that Miranda rights were not properly administered, seek knowledgeable legal support from an experienced defense attorney, like ours, at The Law Offices of Daniel J. Miller.

Contact us today for a consultation to discuss your case and explore your legal options.

Recently, the Virginia Court of Appeals addressed the issue of probable cause in relation to warrantless searches during a case involving a traffic stop in Culpeper. The court ruled that law enforcement officers must have more than just probable cause to search an individual without a warrant for contraband.

Judge Lisa M. Lorish emphasized in her opinion that under the Fourth Amendment, probable cause is the standard required to obtain a warrant but not alone sufficient to conduct a warrantless search.

Keep reading to learn more about search warrants, probable cause, and when a warrantless search may be allowed.

Search Warrants in Virginia

In addition to the Fourth Amendment, Virginia state law also addresses search warrants and the need for probable cause. Under § 19.2-52 of the Code of Virginia, search warrants can be issued by any authorized judge, magistrate, or other designated official. To issue a search warrant, the official must be presented with a sworn complaint and an affidavit establishing reasonable and probable cause for the search.

When is a Warrantless Search Allowed?

A warrantless search may be allowed under specific circumstances, such as when the individual consents, exigent circumstances demand immediate action, or the evidence is in plain view. Additionally, warrantless searches may be conducted during a lawful arrest, when there is a need to prevent the destruction of evidence, or if there is a reasonable belief that the suspect poses an imminent threat to public safety.

What Is Probable Cause

Probable cause is a legal standard used in various contexts, including arrests, searches, and obtaining warrants. It refers to the necessity for law enforcement to have reasonable grounds to believe that a person is committing, has committed, or will commit a crime. This standard is a safeguard, aiming to ensure citizens are not subjected to arbitrary or unjustified legal actions.

The Burden of Proof for Establishing Probable Cause

The burden of proof for establishing probable cause does not demand absolute certainty or conclusive evidence of criminal activity. Rather, it requires a reasonable basis or suspicion backed by factual evidence that would lead a prudent person to believe that a crime has been, is being, or will be committed.

The facts and circumstances used to justify probable cause must be more than mere suspicion or hunches; they should be concrete and substantiated by observable evidence or reliable information. For instance, an officer witnessing a person actively engaging in a crime or possessing illegal contraband can constitute probable cause.

Totality of the Circumstances

Virginia courts, like those elsewhere in the country, often use the "totality of the circumstances" test to evaluate whether probable cause exists. This approach considers all factors and contexts surrounding the situation rather than isolating individual elements. It takes into account the collective evidence and assesses whether it reasonably supports the belief of unlawful activity.

Application in Arrests & Searches

The principle of probable cause applies differently in the contexts of arrests and searches. For an arrest, law enforcement must have probable cause to believe that the individual has committed a crime. In the context of search warrants, officers must demonstrate that there is probable cause to believe that evidence of a crime will be found in the place they wish to search.

Example of Probable Cause Leading to a Search

Consider a situation where an officer pulls over a driver for speeding and observes a visible and identifiable controlled substance on the passenger seat. The officer's observation would likely constitute probable cause to search the vehicle. On the other hand, if the officer merely suspects the presence of drugs without any visible evidence or corroborative information, that suspicion alone would not meet the probable cause standard.

Remember, as previously mentioned, that while probable cause can be used to secure a warrant, it is not enough on its own to justify a warrantless search.

Challenging Probable Cause

Depending on the circumstances of the case, challenging probable cause can be part of a defendant's defense strategy. In such cases, our criminal defense attorneys meticulously examine the facts and circumstances that purportedly establish probable cause, identifying any problems or inconsistencies in the prosecution's case.

Potential ways to challenge probable cause include:

• Lack of concrete evidence
• Misinterpretation of facts or circumstances
• Insufficient corroboration
• Violation of constitutional rights
• Evidence of bias or prejudice
• Absence of exigent circumstances, such as a lawful arrest
• Failure to follow proper procedures

Each of these challenges aims to scrutinize the foundation and validity of the probable cause presented, potentially weakening the prosecution's stance and bolstering the defense's case.

Challenging probable cause will not be appropriate for every case. For personalized legal counsel, contact The Law Offices of Daniel J. Miller.

We are thrilled to announce that thanks to your incredible support and votes, we have won the Silver Place in Best Family Law Firm Southside Coastal Virginia Reader's Choice, published in July/August 2024 issue. This recognition means the world to us and serves as a testament to our commitment to excellence.

We extend our heartfelt gratitude to each and every one of you who took the time to vote and support us. Your loyalty and trust inspire us every day.

Here's to many more successes together!

Click here to view the full publication: Coastal Virginia Magazine

In a divorce, a couple will have to divide assets, debts, and property, and decide who should keep items of personal property. In court, all property in Virginia is categorized so that it can be assessed throughout the distribution process. Every object in an estate is typically categorized as separate, marital, or hybrid, and the court evaluates the property according to the respective spouses’ past ownership or contributions to the marriage. You can better comprehend divorce procedures by being aware of Virginia’s property laws and the way the courts see the marriage itself in regard to the property.

Which Things Are Considered Personal Property?

In the course of a marriage, a couple often combine their premarital possessions and gains personal property together. As a result, a couple must frequently treat the following as personal property when dividing this property through an agreement or legal process:

1. Vehicles. Automobiles, trucks, boats, motorbikes, trailers, off-road vehicles and other “toys” fall under this category.
2. Furniture, Electronics, and Household Goods. These are examples of personal property that should be contemplated in any division of assets.
3. Exquisite Collections. This applies to any collection of items, such as wine, currency, artwork, or antiques. This comprises unique items that were presented as gifts to both spouses, possibly as part of an anniversary or wedding celebration. Gifts can be a tricky category, and depending on the circumstances, may or may not fall under the category of marital property.

The Classification of Personal Property by Virginia Courts

Because Virginia is a “equitable distribution” state, a court will distribute property according to its interpretation of what is fair, which may or may not be equal. In other words, Virginia is not a “50/50” state. Property is therefore not always divided equally. In determining equitable distribution, a court takes into account the circumstances surrounding the acquisition of the property. Property will often be categorized by Virginia courts into one of three broad groups:

1. Separate Property

This can be defined as property acquired before the marriage or after the date of separation. A retirement account will probably be considered separate property if one spouse, for instance, had the account before to the marriage and did not make contributions to that account during the marriage. Courts cannot divide property that is not separate.

2. Marital Property

Both spouses acquire marital property together over the course of their marriage. For example, a house bought during the marriage will probably be classified as marital property regardless of whether the title is in one or both names. The court may decide how to split property that is mandated to be shared fairly.

What About Pets As Marital Property?

There isn’t much to argue about if you purchased your dog or cat before getting married; you are the pet’s original owner and may take it with you. Your spouse has no rights to your pet since it is not marital property. However, it is possible one party may take issue with a large amount of money that was spent on the pet during the marriage, such as surgery, which can be taken into account by a court. But like other marital property, like as the house, bank accounts, pensions, retirement accounts, and automobiles, if the pet was bought or otherwise obtained during the marriage, it is regarded as marital property and is subject to equitable (fair) division. Virginia is not one of the states that treats pets like children, like California and Illinois, where a court can grant custody of a pet to one of the parties.

3. Hybrid Property

Acquiring hybrid property requires using both individual and married finances. For instance, if one spouse owned a car alone prior to marriage but her partner made non-financial or financial contributions to its upkeep and care throughout the marriage, the court may consider the car to be hybrid property.

We can help you with deciding how your property is divided.

At the Law Offices of Daniel J Miller, we recognize that separating personal property after a divorce can be a complex and often an emotional procedure. If you have any questions, our experienced team of divorce attorneys is available to provide you with reliable legal assistance. To discuss your case in more detail, contact us here.

Attending a Virginia family court hearing has its own set of guidelines and best practices. Key strategies to meet the court’s expectations include, but are not limited to, being well-prepared, turning in all paperwork on time and in full, communicating openly with the court, and showing up for court on time. You may make sure you have the best chance of winning your case by adhering to these procedures. But a question that frequently remains unanswered is – “How should I dress for court?”

Family Court Etiquette: Presenting Your Best Self During Court Proceedings

You will probably need to appear in Virginia Family Court if you are having a divorce, adopting a child, or have legal issues regarding paternity, child custody, and support. Usually, one of the parties files a petition to start a family law lawsuit, stating their version of events and the remedy they are seeking. Following filing, the petition is served to both parties, and a preliminary hearing is typically set. In general, we advise clients to take the following actions:

1. Arrive early for court: Being late for court is the last thing you want to happen since court judges do not appreciate lack of punctuality of the parties of a case.
2. Dress modestly: It is recommended to dress professionally to honor the court. Clothes must be presentable and clean. If you want to win your case, you should dress as professionally as you can. At the very least, you must wear shoes and a shirt in the courtroom. Generally speaking, clothing should be devoid of holes, tears, and stains. To ensure you have enough time to get dressed appropriately and find the stuff you need, wash and iron your clothes the night before. Furthermore, using scissors to trim any slack threads can significantly alter the way your entire ensemble looks.
3. Keep your kids at home, don’t get them to court: Generally speaking, the court does not appreciate parents bringing their kids to the court, especially if they are very young.
4. Leave your phone in the car or turn it off: Judges have a common aversion to mobile phones being used or mobile phones ringing in the court.
5. Preserve civility: Talk gently and control your emotions. Serious consequences may result from failing to do so.

Is it permissible to wear military uniforms in Virginia during criminal and/or family law court proceedings?

There is no specific prohibition under any statutes for military personnel in to not wear their military uniform while attending criminal court proceedings in their uniforms. Military service members may choose to wear their uniforms for suitable events, such as court appearances. However, it’s important that you ask your command how they would like you to present yourself on your court date.

What is not allowed in the courthouse?

The following items are prohibited inside most courthouses:

• Weapons of any kind, including knives and firearms;
• Electronics, including cellphones, camera and recording devices;
• Chemical agents; and
• Liquids (excluding baby formula and hand sanitizers size 2 ounces or less).
   

*Small lockers may be available to rent for the day (quarters required)*

Keep in mind that how you dress affects how you feel about the justice system. Respect the judicial system in Virginia when you appear in court, whether you are dressed in civilian clothes or a military uniform.

Another important strategy to increase your chances of getting a good result from your hearing or case, even if you look your best, is to have a trustworthy and skilled family law attorney at your side. Our experienced family law attorneys at the Law Offices of Daniel J Miller can make sure all the necessary components of your family law case are in place so you can concentrate on looking your best in court and taking care of your family.

Our experienced family law attorneys at the Law Offices of Daniel J Miller can assist you with any family law matter, divorce, custody dispute, juvenile law difficulties, among others. Contact us here to know more.