Wills and Trusts

In Antisdel v. Ashby, The Virginia Supreme Court ruled that the administrator of her son's estate who was only appointed for the purpose of bringing a wrongful death suit did not have standing to pursue a personal injury survival claim on behalf of the estate. However, the language under Section 64.1-75.1 of the Code of Virginia, as amended, allows the clerk of the circuit court to appoint an administrator to pursue personal injury and wrongful death actions.

In this case, the administrator wrongfully asserts that she was entitled to pursue alternative claims, when she was not appointed with that power.

What is Uninsured and Underinsured Motorist Coverage?

Pursuant to Section 38.2-2206 (B) of the Code of Virginia, as amended, '"Uninsured motor vehicle " means a motor vehicle for which (i) there is no bodily injury liability insurance and property damage liability insurance in the amounts specified by Section46.2-472, (ii) there is such insurance but the insurer writing the insurance denies coverage for any reason whatsoever, including failure or refusal of the insured to cooperate with insurer, (iii) there is no bond or deposit of money or securities in lieu of insurance, (iv) the owner of a motor vehicle has not qualified as a self-insurer under the provisions of section 46.2-368, or (v) the owner or operator of the vehicle is immune from liability for negligence under the laws of the Commonwealth or the United states, in which case the provisions of subsection F shall apply and the action shall continue against the insurer. A motor vehicle shall be deemed uninsured if its owner or operator is unknown."

Also pursuant to Section 38.2 (B) of the Code of Virginia as amended, "A motor vehicle is "underinsured" when, and to the extent that, the total amount of bodily injury and property damage coverage applicable to the operation or use of the motor vehicle and available for payment for such bodily injury or property damage, including all bonds or deposits of money or securities made pursuant to Article 15 (Section 46.2-435 et. seq.) of Chapter 3 of Title 46.2, is less than the total amount of uninsured motorist coverage afforded any person injured as a result of the operation or use of the vehicle."

In a nut shell, an uninsured motor vehicle means the vehicle in which the defendant is driving does not have available coverage to compensate a person in an auto accident because of statutory reasons, denial of coverage by the defendant's insurance company, or no insurance coverage at all. Additionally, an underinsured vehicle means the defendant's vehicle coverage is less than the available coverage to the plaintiff from the vehicle he is operating.

Lofgren v. Commonwealth

In this interesting case, the Virginia Court of Appeals reverses the trial court. The facts of this case surround the defendant, who was charged with use of profane, threatening, or indecent language. The defendant called his former girlfriend over the telephone and called her a fucking bitch and cunt.

The defendant used the words as curse words or swear words. Thus, the language did not meet the requirements of obscene language under Section 18.2-372 of the Code of Virginia, as amended.

The charge of violating Section 18.2-427 of the Code of Virginia, as amended, is reversed.

Perry v. Commonwealth

In this case, the Virginia Court of Appeals agreed with the trial court. The Virginia Court of Appeals refused to suppress evidence of a vial marijuana found on defendant after the arresting officer smelled marijuana from the defendant's car.

Child Support

My experience as a child support lawyer in Norfolk, Virginia is extensive. It is generally true that an action for child support is an in personam action that requires personal jurisdiction over the obligor. Furthermore, to obtain jurisdiction over the obligor parent, he or she must be served personally in Virginia or through personal service in accordance with the Virginia long arm statute.

Generally, the child support obligation is based on the gross income of both parties. Furthermore, Virginia relies heavily on the guideline amount in setting child support. However, the court will also generally consider day care expenses and cost of health insurance for the child in setting a child support obligation. Thus, the child support guideline statutes create a rebuttable presumption that the amount computed is the correct amount.

DUI Sentencing

1st offense: up to 12 months in jail and $2,500.00 fine; mandatory minimum fine not subject to suspension is $250.00; if BAC is greater than or equal to .15 to .20, 5 days mandatory jail not subject to suspension; if BAC is greater than .20, 10 days mandatory jail time not subject to suspension; restrictive license eligibility upon entry into ASAP program; interlock required if BAC is greater than or equal to .15; 12 months suspension of DL

2nd offense w/in 5 years: up to 12 months in jail and $2,500.00, mandatory fine not subject to suspension is $500.00 (plus $500.00 if BAC is equal to or greater than .20); 20 days mandatory jail time not subject to suspension (plus 10 days if BAC is equal to or greater than .15 or plus 20 days if BAC is greater than or equal to .20); eligible for restrictive license after 1 year; interlock required for 6 months to 3 years; suspension of DL for 3 years;

2nd offense w/in 10 years: up to 12 months in jail and $2,500.00 fine; $500.00 fine not subject to suspension (plus an aditional $500.00 if BAC is greater than or equal to .20); 10 days in jail not subject to suspension (plus an additional 10 days if BAC is greater than or equal to .15 or 20 days if BAC is greater than or equal to .20); eligible for restricted DL after 4 months; interlock required for 6 months to 3 years; suspension of DL for 3 years

3rd offense w/in 5 years: 1-5 years in prison or up to 12 months in jail and $2,500.00 fine; $1,000.00 fine not subject to suspension; mandatory jail sentence of 6 months not subject to suspension; no restrictive driver's license (however, you may petition after minimum of 5 years); interlock required for at least 6 months upon restoration of DL or with a restricted DL during time of suspension; suspension of DL is indefinite(however, one may petition after minimum of 5 years

3rd offense w/in 10 years: 1-5 years in prison or up to 12 months in jail and a $2,500.00 fine, mandatory minimum fine of $1,000.00 not subject to suspension; mandatory minimum of 90 days in jail not subject to suspension; no restrictive operator's license; interlock is not applicable; indefinite suspension of DL (however, one can petition after 5 years)

4th offense w/in 10 years: 1-5 years in prison or up to 12 months in jail and a $2,500.00 fine; mandatory fine of $1,000.00 not subject to suspension; mandatory minimum of 1 year in jail not subject to suspension; no restrictive driver's license; interlock device is not applicable; indefinite suspension of DL (however, one may petition after 5 years for reinstatement of DL)

Divorce lawyer in Norfolk, Va

People frequently ask me, "what makes someone a good divorce lawyer?" I generally answer that the lawyer should be empathetic, a good listener, and knowledgeable about the law. I also say that the divorce lawyer needs to be willing to go to court to protect the client.

The lawyers at Montagna & Montagna, P.C. have handled many divorce cases. We encourage our clients to call our office at 757-625-3500 whenever they have questions. We also appreciate clients who heed our advice and help us to help them. Finally, we reccomend that anyone who is looking for a dedicated, divorce attorney that they review our web site at www. montagnalaw.com.

Our web page has a wealth of helpful information. Additionally, potential clients can e-mail us questions, which we answer as quickly as possible.

If you are looking for a good divorce lawyer in Norfolk, Virginia, please visit our web site at www.montagnalaw.com or call us at 757-625-3500.