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Legal FAQs

This page attempts to answer some  commonly asked legal questions.  Please do not consider this legal advice.  Call Anthony L. Montagna, III today at 757-625-3500.

What is Negligence?

Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation. Virginia recognizes simple, gross, and willful negligence. Additionally, Virginia is a contributory negligence state. Any negligence on the part of the plaintiff may bar recovery.

What should I do if involved in an automobile accident?

After an automobile accident, one should immediately call the police. Additionally, one should exchange information with the other party or parties. Finally, one should seek immediate medical attention if experiencing pain or discomfort. A hospital or primary doctor is an excellent source for treatment.

What is a felony?

An offense that is punishable with death or confinement in a state correctional facility is a felony. All other offenses are misdemeanors. Traffic infractions are violations of public order as defined in Section 46.2-100 and not deemed to be criminal in nature.

What should I do if I am arrested?

You should provide the arresting officer with your name, address, and social security number. If the officer asks you any questions, you should advise the officer of your desire to remain silent and request an attorney. In any case you should not allow the officer to take a statement from you.

What should I do if I get a speeding ticket?

First, you should immediately obtain a calibration of your vehicle. Second, you should obtain a copy of your driving record from DMV. Third, if you wish to ask the Court to reduce your infraction to defective equipment, a non moving violation, you may wish to have a certificate of completion from a driver improvement class to present to the Judge.

What are the residence and domicile requirements for a divorce?

When the divorce suit is filed, at least one of the parties must be and must have been an actual bona fide resident and domiciliary of Virginia for at least the preceding six months.

What types of custody exist in Virginia?

Generally, Virginia recognizes sole, joint, shared, and split custody. Sole custody means that one parent retains the responsibility for the care and maintenance of the child and has the primary right to make decisions concerning the child. Joint custody involves both parties having the joint responsibility for the care, maintenance, and decisions for the child.. Although not defined in the Code of Virginia, shared custody involves the relationship between the parents willingly sharing the care and responsibilities for the child Finally, split custody occurs where each parent has primary sole custody of one or more of the children.

How much child support should I pay

Generally, the Courts figure the gross income of both parties and require the non custodial parent to pay a percent of the recommended child support obligation based on his or her percent of the joint gross income of the parties.

Do I qualify for Social Security Disability benefits?

Generally, To be eligible for disability benefits, one must determine from the social security administration whether they have contributed enough earnings, based on quarters worked. Additionally, one must be unable to work at any calling or engage in any gainful employment for at least twelve months or death.

What were some of your big cases or settlements?

Although every case and situation is different, the results from one case do not guarantee results in a different case, and the examples below are for information only, some of my successful cases are the following:

A. We represented an elderly woman, who broke her hip in a parking lot. We were able to settle the lady’s case for over $200,000.00.

B. A gentleman was charged with DUI with a blood alcohol content of .17. We objected
to the certificate of analysis because the certificate was not filed at least seven days prior to trial. The client was found guilty of reckless driving.

C. A client was charged with first degree murder. Based on intense negotiations with the Commonwealth Attorney, we secured a plea agreement for voluntary manslaughter.

D. A client was charged with possession with intent to distribute drugs. We filed a motion to suppress. The Commonwealth agreed, and the charge was nolle prossed ( a dismissal without prejudice).

How do you divide a military pension in a divorce?

Generally, a former spouse’s share of her service member or retired service member husband’s retirement is calculated as follows:
(Months of marital pension service divided by months of total pension service) times 50%

In a divorce involving a service member or retired service member, what are some of the benefits for the former spouse?

A. Generally, a former spouse is entitled to a division of retired pay regardless of the number of years that the service member served.

B. SBP or survivor benefit plan is generally available to the former spouse regardless of the number of years that the service member served.

C. Generally, child support and spousal support are available by direct payment regardless of the number of years that the service member served.

D. Full health insurance is available if the length of time that marriage overlaps with service creditable for retirement purpose is at 20 years or more.

E. Transitional health insurance is available if the length of time that marriage overlaps with service creditable for retirement purpose is at least 15 years and less than 20 years.

F. PX and commissary privileges are available if the length of time that marriage overlaps with service creditable for retirement purpose is at 20 years or more.

What is Survivor Benefit Plan (SBP)?

Generally, SBP is an annuity program that affords retired service members or retirement eligible service members a way to provide income for family members at the service member or retired service member’s death.

What is the 10- year rule involving the military service member’s pension?

Generally, there is a 10-year overlap between the marriage and creditable military service that must be satisfied before DFAS (Defense Finance and Accounting
Service) can be ordered to make direct payments of pension division awards.