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Buchbauer & McGuire, PC

110 North Braddock Street
Winchester, VA 22601-3914

Telephone

(540) 722-2300

Fax

(540) 722-3174

Our Office Hours

Monday – Friday
8:00am – 5:00pm

E-mail Us

Via online inquiry form

Buchbauer and McGuire: 110 North Braddock Street, Winchester, VA 22601-3914

Buchbauer and McGuire Practice Areas

Adoption

Buchbauer & McGuire is pleased to have experienced part of the joys of adoption by representing adoptive parents.  Our clients have included parents adding to their family through parental placement adoptions, adoptions through the Department of Social Services, and international adoptions.

In a parental placement adoption, the adoptive parents typically enter into an Entrustment Agreement with the birth parents authorizing the adoptive parents to care for the child.  The next stage of the parental placement adoption takes place in the Juvenile and Domestic Relations District Court, where the Court accepts the birth parents’ consent to the adoption.  Following an interlocutory period of six months, the adoptive parents then proceed to obtain a Final Order of Adoption in the Circuit Court.  Virginia law relating to parental placement adoptions is very detailed, and the attorneys of Buchbauer & McGuire have extensive experience with the statute.

Some families grow through the adoption of a child through the Department of Social Services.  Often this happens when a family has been fostering a child who becomes available for adoption.  In these adoptions, the Department of Social Services petitions the Court to terminate the rights of the birth parents and, if the Court does so, the adoption may proceed.

While international adoptions vary by country, the adoption often is finalized in the child’s country of origin.  While re-adoption in Virginia is not required in such a case, many adoptive parents choose to do so in order to obtain a birth certificate for their child that is in English.

Alternative Dispute Resolution

As experienced litigation attorneys, we know that litigation should be the last option for resolving a conflict. Several alternatives exist, including negotiation, mediation and collaboration.

In a traditional negotiation, each party strives to reach an agreement out of court. The negotiation may take place through conference calls, the exchange of letters or a settlement conference. Negotiation often involves as much advocacy and strategy as litigation but empowers the parties to craft the settlement that best serves their needs.

Mediation is a process guided by a neutral third party who is trained in conflict resolution and usually is familiar with the subject matter of the conflict. While mediators often are lawyers, it is not a requirement. The parties may have legal representation during the mediation or they may choose not to include their attorneys until an agreement is ready to be drafted or reviewed.

The collaborative process is a method of alternative dispute resolution that was developed from the mediation model and has exploded in the family law area. In a collaborative case, the clients determine their own resolution with the support of a team of trained professionals. The team of professionals may include attorneys, mental health professionals and/or a financial professional. The goals of the professionals are to make sure the clients are fully informed, learn how to communicate with each other successfully and are emotionally prepared to engage in the collaborative process. In order to achieve these goals, the parties must commit to resolve their matter through collaboration without resorting to litigation and waive all confidentiality. The collaborative process is distinguished by its transparency and respect for the parties.

Annulment

An annulment dissolves a marriage by declaring that the marriage never existed.  Virginia law sets forth narrow grounds for an annulment, all of which are waived if not asserted within a certain period of time.  Grounds for an annulment include lack of capacity, the existence of a previous marriage not legally dissolved, and a biological relationship between the parties.

Automobile Accidents

Business Advice

We regularly review the various contracts required by our business clients, including but not limited to employment contracts, vendor contracts, agreements not to compete and shareholder agreements.

Child Custody

Perhaps no conflict is more important, or stressful, for a party than litigation involving the custody of his or her child.  In Virginia, both legal and physical custody must be established.  Legal custody involves decision-making on behalf of the child, while physical custody relates more to the amount of time a child spends with each parent.  While the parents presumptively are the best custodians of a child, third parties such as grandparents may gain custody if they can prove by clear and convincing evidence that certain circumstances exist, such as abandonment, neglect or voluntary relinquishment of the child.

Virginia law sets forth specific factors the Court must consider in determining what custodial arrangement is in a child’s best interests.  The factors include who has been the child’s primary caretaker in the past, who is best able to assess and meet the child’s needs, the age, physical and mental condition of the parents and the child, the propensity of each parent to support the child’s relationship with the other parent, and the preference of the child (if the child is of sufficient age and maturity to express a preference). The Court must consider each statutory factor, with no single factor being determinative.

Child Support

Virginia law establishes a guideline amount for monthly child support that is based on each party’s gross monthly income, the cost of work-related child care costs and the cost to provide health insurance for the child.  The amount of child support also would be effected if either parent had other children (either living with them or for whom they pay child support).  Different guidelines may apply if each parent has custody of the child for more than 90 days per year.  The Court may deviate from the guideline amount in certain specific circumstances.

Child Visitation

As one of the Judges in our judicial district is fond of saying, visitation is all about dividing the time a child spends in two homes.  Virginia law sets forth specific factors the Court must consider in determining what visitation schedule is in a child’s best interests.  The factors include who has been the child’s primary caretaker in the past, who is best able to assess and meet the child’s needs, the age, physical and mental condition of the parents and the child, the propensity of each parent to support the child’s relationship with the other parent, and the preference of the child (if the child is of sufficient age and maturity to express a preference). The Court must consider each statutory factor, with no single factor being determinative. 

As a practical matter, the work schedule of each parent and the school and extracurricular activities of the child are important matters for the parties to consider in crafting a regular schedule of visitation.  The parties also should attempt to define holiday and summer vacation schedules in order to provide predictability for the children, as well as quality time with each parent.

Civil Litigation

Our attorneys represent clients in various civil litigation matters, including disputes over real property, homeowner’s agreements, covenants, and breach of contract.

 

Collaborative Divorce

At Buchbauer & McGuire, we are passionate about collaborative divorce because we have seen the devastation, both emotional and financial, that families can experience through the “scorch and burn” approach of litigation.  In a collaborative case, the clients determine their own resolution with the support of a team of trained professionals.  The team of professionals may include attorneys, mental health professionals and/or a financial professional.  The goals of the professionals are to make sure the clients are fully informed, learn how to communicate with each other successfully and are emotionally prepared to engage in the collaborative process.  In order to achieve these goals, the parties must commit to resolve their matter through collaboration without resorting to litigation and waive all confidentiality.  The collaborative process is distinguished by its transparency and respect for the parties.

We encourage you to visit one of the following websites to learn more about collaborative divorce:

Corporate Formation

Our attorneys can discuss with you the benefits of various business formations, including corporations, sub-chapter S corporations, limited liability companies and sole proprietorships.  We also can prepare all documents necessary to form your business and can serve as the registered agent for your business.

Collections

Our attorneys can assist you in collecting money that is owed to you or your business.  This may involve obtaining the necessary judgment, docketing the judgment in any jurisdiction where the debtor owns real property, garnishing the debtor’s wages or bank accounts, and taking debtor’s interrogatories.

Contracts

At Buchbauer & McGuire, we pride ourselves in our ability to draft contracts or agreements tailored to your specific needs that are easy to understand, mindful of potential future circumstances effecting the contract, and enforceable.

Criminal Law

Our firm provides aggressive defense of all criminal charges, including white collar crime.

Divorce

Each divorce is unique. However, in all divorces the goal is to end the marriage and often to resolve child custody or visitation, equitable distribution of property and/or support.

A divorce case starts informally when a couple separates and one of the parties has the intent that the marriage is over.  If the parties are not able to agree on a matter that must be resolved as part of the divorce, one party may file for divorce in the circuit court, have an attorney attempt to negotiate a compromise, or ask the other party to participate in mediation or a collaborative divorce.

A divorce action formally begins when one party files a Complaint, or formal request for divorce.  The other party may respond by filing an answer to that Complaint, specifically affirming or denying each statement contained in the Complaint.  Sometimes, the responding party may file his or her own request for divorce in a pleading called a Counterclaim. The party filing the first pleading is called the Plaintiff, and the responding party is called the Defendant.  There is no particular benefit to being the first party to file, although the timing of the filing may be relevant in determining the effective date of support.

A party may file for a divorce based on fault grounds (such as adultery, cruelty or desertion) or no-fault grounds (meaning a divorce granted merely because a couple has separated for the requisite amount of time).

Every divorce involves information-gathering, which can be accomplished informally by a mutual exchange of financial information, or more formally by interrogatories (written questions that a party must answer under oath), requests for production of documents, depositions, requests for admissions, and other discovery techniques.

At any point in the litigation, the parties may agree on some or all of the issues that must be resolved in connection with the divorce. If they do agree, they enter into a Separation Agreement or a consent court order that resolves the issue. If the parties are able to resolve all outstanding issues by means of an agreement or consent order, obtaining the divorce is normally a straightforward administrative process. If the parties cannot do so, the Court will at trial.

Premarital Agreement

Some couples choose to enter into an agreement prior to marriage in order to make each of their respective rights clear.  In Virginia, a premarital agreement must be in writing and signed by both parties. As with all contracts, each party must enter into a premarital agreement voluntarily.  In addition, a party may challenge a premarital agreement on the grounds that it was unconscionable when executed or that a party did not make a fair disclosure to the other prior to the execution of the agreement.  Common provisions in a premarital agreement include:

  • The rights and obligations of each of the parties in any of the property of either or both of them;
  • The disposition of property upon separation, marital dissolution or death of either party;
  • Spousal support

The attorneys of Buchbauer & McGuire are experienced in drafting Premarital Agreements tailored to the specific needs and concerns of our clients.

Property Division

In a divorce, all property owned by the parties must be classified and divided.  Virginia law classifies property as separate, marital or part separate and part marital (also called “hybrid” property).   Separate property owned by a spouse is not subject to division in a divorce proceeding, and instead remains owned by the spouse who acquired it.  Generally, separate property is property acquired prior to the marriage or inherited during the marriage.  The passive increase in value of a separate asset is also separate property.  Marital property is all property that is not separate.  Part separate and part marital property is self-explanatory, with perhaps the most common example being real property, the down payment for which was separate property but the equity in which was increased during the marriage through the payment of a mortgage or improvement from marital funds.

All marital and part marital property is distributed upon divorce in an equitable, not necessarily equal, manner. To determine what an equitable division of property is, the Court considers various factors, including:

  • The contributions, monetary and nonmonetary, of each party to the well-being of the family
  • The contributions, monetary and nonmonetary, of each party in the acquisition, care, and maintenance of the marital property
  • The duration of the marriage
  • The ages, physical, and mental condition of the parties
  • How and when specific items of marital property were acquired
  • The debts and liabilities of each spouse, the basis for such debts and liabilities, and the property which may serve as security for such debts and liabilities
  • The liquid or non-liquid character of all marital property
  • The tax consequences to each party
  • The circumstances and factors which contributed to the dissolution of the marriage, and related considerations
  • Inappropriate use or dissipation of martial property in anticipation of separation or divorce or after the last separation of the parties
  • Such other factors as the court deems necessary to consider in order to arrive at a fair and equitable monetary award

Separation Agreement

A “Separation Agreement” or “Property Settlement Agreement” is a written document that embodies the agreements reached by parties who are in the process of divorcing.  The majority of divorces involve the execution of a Separation Agreement, whether the agreement is drafted and executed soon after a client’s first meeting with an attorney or whether it is executed the day of a scheduled final trial.

In a separation or property settlement agreement, parties may contract with respect to:

  • The rights and obligations of each party regarding any asset or debt
  • Custody and visitation of any minor children
  • Spousal and child support
  • Any other matter, including the spouses' personal rights, obligations and liabilities, not in violation of public policy

Once signed by both spouses, the agreement is presented to the court granting the divorce. The terms of the agreement are incorporated (but not merged) into a court order. Certain aspects of the agreement may be subject to future modification by a court, while other provisions cannot be changed by a court.

Spousal Support

Spousal support (also referred to as "alimony" or "maintenance") can be one of the issues in a divorce that keeps the matter from being resolved amicably.  Temporary spousal support may be granted from the date of separation until a final divorce is granted.  In determining temporary spousal support, the Court uses a guideline calculation based on the parties’ gross monthly income but also considers the payee’s needs and the payor’s ability to pay.

The amount and duration of post-divorce spousal support is in the discretion of the Court.  The Court is guided by a number of factors, including:

  • Each spouse's obligations, needs and financial resources, including, but not limited to, income from all pension, profit-sharing or retirement plans, of whatever nature
  • The standard of living established during the marriage
  • The duration of the marriage
  • The spouses' ages and physical and mental conditions, and any special circumstances of the family
  • The extent to which the age, physical or mental condition or special circumstances of any child would make it appropriate that a spouse not seek employment outside of the home
  • Each person's monetary and nonmonetary contributions to the well-being of the family
  • The spouses' property interests, both real and personal, tangible and intangible
  • The provisions made with regard to division of marital property
  • Both spouses' earning capacities, including their skills, education and training, and the present employment opportunities for persons possessing such earning capacity
  • The opportunity for, ability of, and the time and costs involved for a spouse to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability
  • The decisions regarding employment, career, economics, education and parenting arrangements made by the couple during the marriage, and their effect on present and future earning potential, including the length of time one or both of the spouses have been absent from the job market
  • The extent to which either spouse has contributed to the attainment of education, training, career position, or profession of the other party
  • Other factors, including tax consequences, as are necessary to consider the equities between the spouses

The Court may order that spousal support be paid periodically or in a lump sum.  Spousal support may be awarded without regard to the reason for the breakdown of the marriage, although a person who commits adultery is presumptively barred from receiving spousal support.

By law, spousal support terminates upon the death of either spouse, the remarriage of the payee, or the payee’s cohabitation with a person in a relationship analogous to marriage for a period in excess of one year.

Traffic Infractions

Wills and Powers of Attorney

As part of a total estate plan, the attorneys at Buchbauer & McGuire, P.C. recommend that all of our clients have current Wills, powers of attorney, and advance medical directives.

Wills

Estate planning is important for everyone, but perhaps none so much as a person going through a divorce. It is important for each spouse to review his or her current Will to determine if his or her intentions as to property will be met in light of changing circumstances.  A Will can establish not only who will receive your property when you die, but who will raise your children, who will handle the funds left to your minor children, and who will manage your estate.

Power of Attorney

A Power of Attorney is a legal document that allows one person to act in the place of another and to make certain decisions described in the Power of Attorney. A Power of Attorney can be effective immediately upon execution (a “Durable Power of Attorney”) or upon a person becoming incapacitated (a “Contingent Durable Power of Attorney”).  A Power of Attorney allows a trusted friend or family member to handle your business or other financial affairs for a period of time.

Advance Medical Directive

Virginia law permits an individual to name a trusted friend or family member to make his or her health care decisions if, for some reason, the individual is unable to make such decisions. This authority is granted in an Advance Medical Directive, which also gives instructions on how the person would like to proceed in the event that death is imminent. An Advance Medical Directive relieves your loved ones from having to make this difficult decision in a time of crisis.