Your Legal Rights

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SOUTHWEST VIRGINIA LEGAL AID

HOW MUCH DO YOU KNOW ABOUT YOUR LEGAL RIGHTS?

www.svlas.org | 1-888-201-2772

TABLE OF CONTENTS

3 Custody and Visitation Divorce Wage Garnishment Foreclosure Which bills to pay? Buying a used vehicle Electricity cut off Lockout by landlord Rent to own Can a nursing home ask you to leave? Do I have to have a will? Direct Express Debit MasterCard 4 5 6

Understanding social security Mixing money and relationships

Driver’s license suspension Am I eligible for Legal Aid?

www.svlas.org | 1-888-201-2772

CUSTODY AND VISITATION

Who Has Rights To Custody Of A Child? If there has been no custody order signed by a Judge, both parents of a child have equal rights to the child. This is the case whether or not the parents are married to each other.

This is legal information. If you want legal advice that is specific to your situation, you need to contact an attorney. To find out if you are eligible for free legal advice or representation, you can contact Southwest Virginia Legal Aid at www.svlas.org or you can call toll free at 1-888-201-2772 .

I Want To File For My Child’s Custody; How Do I do This? You can file a petition for your child’s custody by going to the Juvenile Court in the county where your child has lived for the last six months. You do not need an attorney and you may be able to file without paying the filing fee if your income is low enough. You and the child’s other parent must not be living together in order for you to file for your child’s custody. What Happens At The Court Hearing? If you and the child’s other parent are in agreement about where and with whom the child will live and how you both will be involved in the child’s life, you can tell the Judge about that and your agreement will become the custody order. If you and the child’s other parent are not in agreement, you will each have the opportunity to tell the Judge what you think will be in the best interests of your child and any concerns you may have. A Judge is required to consider specific factors when

deciding about custody. The role each parent has played up until the present in caring for the child and the plans for such future care are among the most important. Does The Judge Consider What The Child Wants? If the child is 14 or older, the Judge will be interested in what he or she wants. Usually, the Judge will appoint a lawyer for the child called a Guardian ad Litem (GAL). The GAL will visit with the child away from the Courthouse and then tell the Judge what the child’s preferences or concerns are. What If The Other Parent Gets Custody? If you are present in court and tell the Judge that you want to spend time with your child, the Judge will almost always order that you have visitation. If the Judge believes that your living situation is not appropriate for a child or if you have engaged in behaviors that the Judge thinks place your child at risk, he or she may order that your visits be supervised.

www.svlas.org | 1-888-201-2772

DIVORCE

Can Legal Aid help me with a divorce? If you and your spouse are living separate and apart and you intend for that separation to be a permanent one, Southwest Virginia Legal Aid (SVLAS) may be able to represent you in filing for divorce.

You can contact Southwest Virginia Legal Aid to apply online at www.svlas.org or you may call toll free to 1-888-201-2772 .

What do I need to do? First you need to contact our Intake Office to find out if you are financially eligible for our services. Next, you and your spouse must have settled any issues you have concerning the custody and support of minor children of the marriage as well as any claims for spousal support, the division of your property or the future payment of debts. A divorce in which both spouses have resolved issues by agreement is called an uncontested divorce. How can we settle these issues? If you and your spouse are in agreement, you can prepare a separation agreement signed by each of you describing what you have agreed to. SVLAS does not ordinarily prepare Separation Agreements but we can provide a sample agreement for you to go by. Another option is to file petitions for custody, visitation, child and/or spousal support in the Juvenile Court and obtain an order from the Judge which resolves the issues.

What else do I need to do? You need to have an address for your spouse where he or she can be served with a copy of the Complaint for Divorce. You also need to have a copy of your marriage license. There is a filing fee to be paid to the Court; however, if your income is below a certain amount, the Judge may allow you to file for Divorce without paying the filing fee. What if my spouse and I can’t agree about issues? If you and your spouse own property and you cannot agree about how to divide it or you have custody or support issues which have not been resolved, these matters can be dealt with by a Judge in a divorce after he or she hears evidence and reviews documents. A divorce in which a Judge makes rulings to settle support, custody or property issues is called a contested divorce. SVLAS does not handle contested divorces.

www.svlas.org | 1-888-201-2772

CHAPTER 7 BANKRUPTCY

My Wages Are Being Garnished By a Creditor To Whom I Owe Money; Can Legal Aid Help Me With a Bankruptcy? If you are financially eligible to

receive Legal Aid’s services, we may be able to represent you in filing a Chapter 7 bankruptcy to protect your wages.

What Would This Involve? First, we would need to determine that: • You had not filed a Chapter 7 bankruptcy and received a discharge of your debts in the last 8 years; • You do not own a home and/or land that is paid for and that you wish to keep; • You do not own a vehicle that you want to keep which is paid for and worth more than $6000; Second, you would need to: • Provide us with a complete list of everyone to whom you owe money, lists of your monthly income and expenses, state and federal tax returns for the previous two years and pay records for the past three months; • Complete an online credit briefing; and • Appear in Court at a Meeting of Creditors. Would All My Debts Be Discharged In a Chapter 7 Bankruptcy? Certain debts cannot be discharged in bankruptcy. These are debts for child and spousal support, most student loans, criminal court fines and some taxes.

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CHAPTER 13 BANKRUPTCY

I Am Behind on My House Payments and/ or Car Payments And The Creditors Are Threatening to Foreclose On My Home and/or Repossess My Vehicle; Can Legal Aid Help Me With a Bankruptcy? If you are financially eligible to receive Legal Aid’s services, we may be able

to represent you in filing a Chapter 13 bankruptcy to give you a chance to catch up on your house or car payments or both.

What Would This Involve? If you wish to keep your home, we would need to help you propose a Plan to pay over 3 to 5 years: • Your regular monthly house payment; • An additional monthly payment to catch up on your missed house payments: • The balance owed on any vehicle; and • A monthly payment to cover a portion of your other debts like medical bills and credit cards You would need to provide the Chapter 13 Trustee and the Judge with documentation showing that you had enough income to afford to make the payments you proposed as well as your ordinary monthly living expenses. Otherwise, your Plan will not be approved and your bankruptcy case would be dismissed.

What Else Would I Have To Do? You would need to:

• Provide us with a complete list of everyone to whom you owe money as well as detailed lists of your monthly income and expenses, your state and federal tax returns for the previous two years and pay records for the last three months; • Complete an on-line credit briefing: and • Appear in Court at a Meeting of Creditors.

This is legal information. If you want legal advice that is specific to your situation, you need to talk with an attorney. To find out if you are eligible for free legal advice or representation, you can contact Southwest Virginia Legal Aid at www.svlas.org or you can call toll-free at 1-888-201-2772.

www.svlas.org | 1-888-201-2772

MY RIGHTS AS A DEBTOR

Secured Debts If you have entered into an agreement to purchase a home, a vehicle or furniture and are making monthly payments, you have most likely given the seller or finance company a security interest in the item or items you are purchasing. The item or items are called collateral and the debt is secured. Both you and the seller or finance company have certain rights. Once you make the final payment under the contract, you will own the property free and clear; you can continue to own it or you can sell it to someone else or give it away. If, however, you fail to make a payment for even one month, the seller or finance company can exercise their right to foreclose or repossess the collateral. If you miss a payment and you wish to keep the property, you should call the individual or company to whom you are making payments right away. Explain what happened and exactly when you can make up the payments you have missed. If you don’t wish to keep the home, vehicle or furniture or can’t afford to keep making payments, you can expect the seller or finance company to take steps to recover the property. This may happen quickly or it may take months. And, even if the property is taken from you, you may still have a debt and the seller or finance company can try to collect money from you. Unsecured Debts If you owe money to a doctor, hospital, credit card company, cash advance lender or to a seller or finance I Don’t Have Enough Money To Pay All My Bills; What Should I Do? First, you need to know the difference between secured and unsecured debts.

company after a repossession or foreclosure, these are unsecured debts. The creditors can take steps to get you to pay but they cannot come and take your property. They may call or write to ask you when you plan to take care of the debt; they may say that they will take you to court if you don’t pay and they may threaten to garnish you wages or bank account. You don’t have to speak with a creditor who calls you! Unsecured creditors cannot garnish your wages or your bank account until they have filed a court paper called a Warrant in Debt or a Motion for Judgement and had a hearing in front of a Judge. If you are served with either of these court papers, you do not have to appear in court but you probably want to get legal advice before the hearing. Are Some Bills More Important To Pay Than Others? Yes! Your house payment and car payment are very important to pay because the secured creditors have the right to take the property if you don’t pay. Your monthly rent and utilities are very important to pay because you and your family need a safe place to live. Your car insurance is important to pay because there are very large fines for driving without insurance. This is legal information. If you want legal advice specific to your situation, you need to talk with an attorney. To find out if you are eligible for free legal advice or representation, you can contact Southwest Virginia Legal Aid at www.svlas. org or you can call toll free at 1-888-201-2772.

www.svlas.org | 1-888-201-2772

PURCHASING A USED CAR

I Just Bought A Used Car; It Needs Work And The Seller Says I Have To Pay For The Repairs. What Are My Rights? When you buy a used car from a dealer, you

take a risk because you don’t know for sure about the condition of the car. Most used cars are sold “as is” and, even if there is a warranty, it will most likely require you to pay part of the cost of repairs.

What Can I Do To Protect Myself? You could try to find a mechanic who could look the car over before you buy it;

You could consider purchasing from friends and/or family who would likely tell you about the vehicle’s condition; You should shop for a loan before you approach a dealer so you know how much you want to borrow and how much the monthly payment will be; and You could look into getting free help from America Saves (www.AmericaSaves.org) in order to save for a large down payment to reduce the amount of interest you will have to pay; and You should remember that there is no 3 day right to cancel for car or financing sales so be sure you understand all the terms before you sign a purchase contract.

This is legal information. If you want legal advice that is specific to your situation, you need to talk with an attorney. To find out if you are eligible for free legal advice or representation, please contact Southwest Virginia Legal Aid toll free at 1-888-201-2772 or on line at www.svlas.org.

www.svlas.org | 1-888-201-2772

EXTRA TIME TO PAY Electric or Water Bills

What Is A Serious Medical Condition? A serious medical condition is “a physical or psychiatric condition that requires medical intervention to prevent further disability, loss of function or death”. Examples of medical intervention could be the use of a ventilator, a dialysis machine, continuous oxygen or medications requiring special storage or access to water. When Should I Ask For More Time To Pay? It would be best to ask for more time and file the form before you receive the cut off notice. If you receive a cut off notice and have not yet filed the form, call the utility, tell them about your medical condition and ask for an extension. You will then get 10 days to file the form. These ten days count toward the 30 days you have to pay your bill. I Have A Serious Medical Condition And My Electricity Is About To Be Cut Off. What Can I Do? If you or someone in your household has a serious medical condition, you can ask for a 30 day extension of time in which to pay your bill. The person with the serious medical condition and a physician (not a nurse or nurse practitioner) must complete a Serious Medical Condition Certification Form and send it to the utility company. The form can be found at http://www.scc.virginia.gov/ publicforms/594/med_cert.pdf

What If My Electric Or Water Is Already Cut Off? You will need to send the utility company the completed Serious Medical Condition Certification Form within 14 days of the cut off. The company should turn the service back on once they receive the completed form. A reconnection fee can be added to your future bill. What If I Need More Than 30 Days To Pay My Bill? You can ask for 30 more days for a total of 60 days once in every 12 month period.

This is legal information. If you want legal advice that is specific to your situation, you need to talk to an attorney. To find out if you are eligible for free legal advice or representation, you can contact Southwest Virginia Legal Aid at www.svlas.org or you can call toll free at 1-888-201-2772.

www.svlas.org | 1-888-201-2772

LOCK OUT BY LANDLORD

My Landlord Has Locked Me Out; Is There Anything I Can Do?

If your landlord has changed the locks or cut off the water or electric service to your rental unit, you can file a Petition with the General District Court.

At your hearing, you can ask the Judge to:

Order your landlord to let you back in; or

Order your landlord to restore electricity or water service; or

Terminate your rental agreement and order the landlord to give your deposit back.

The Petition you need to file is called Tenant’s Petition for Relief from Unlawful Exclusion . It is available from the Clerk of the General District Court.

www.svlas.org | 1-888-201-2772

RENT TO OWN

Is It A Good Idea To Rent-to-Own? You may have decided to enter into a rent-to-own agreement because you can’t get a loan to purchase a home. Or, your landlord may have offered to let you take over the payments on a home you’ve been renting. But, you may face some problems.

What Kind of Problems? This is a situation in which you have very few legal rights. Generally, the seller of the land or mobile home agrees to put the deed to the land or the title to the mobile home in your name only after you have made the very last payment. This means that during all the years you are making payments, the seller remains the owner of the property. Because the deed or title to the property you are purchasing remains in the name of the seller until ALL the payments are made, the seller keeps the ability to sell the property to someone else or to borrow money using the property as collateral even while you are making the payments. The property could even be foreclosed on and you would not have to be notified. Are There Things I Can Do to Protect Myself? If you still decide to go ahead with a rent-to-own agreement, be sure to do the following: • Make sure your entire agreement is in writing and let a lawyer go over it with you before you sign it;

• Be sure all parties (and spouses) sign the agreement, get and keep a signed and dated copy of the agreement in a safe place; • If land is involved, get a copy of the property tax ticket from the Treasurer’s office so you will know whether you are buying it for a fair price and you will know for sure that the seller actually owns the property; • Record a copy of the rent-to-own agreement in the Circuit Court Clerk’s office in the county where the home is located; • If you make any payments in cash, get a receipt for every payment you make; keep every receipt or cancelled check in a safe place because these receipts are the only proof you have that you made each payment on time; • Do not agree to be responsible for paying taxes and/or insurance on the property while you are renting-to-own.

This is legal information. If you want legal advice that is specific to your situation, you need to talk with an attorney. To see if you are eligible for free legal advice or representation, you can contact Southwest Virginia Legal Aid at www.svlas.org or you can call toll free at 1-888-201-2772.

www.svlas.org | 1-888-201-2772

NURSING HOME DISCHARGE

What If A Nursing Home Asks Me To Leave? Under the Nursing Home Reform Law and Virginia state law, residents have protections when they are asked to leave the facility, to go to another facility, to go back to their home or to go to the home of a loved one.

Can I Appeal The Discharge? You have a right to appeal to the Department of Medical Assistance Services (DMAS) to challenge the discharge and you should file your appeal before the date of the proposed discharge. The Nursing Home cannot make you leave until you have a safe place to go where you will receive appropriate care. The Nursing Home staff must help you and your family find an appropriate place to move to and they must develop a plan of care to help you adjust to the new place. What If I Go From The Nursing Home To The Hospital For A Time? If you go to the hospital, you have the right to go back to the first available bed in the same nursing home as long as you are Medicaid-eligible and you still need nursing home care.

First, consider: • Could the facility truly not meet your health care needs? • Has your health improved enough that you no longer qualify for nursing home care? • Is the safety of other residents seriously endangered by your actions? • Is the physical health of others seriously at risk because of you or your actions? • Have you failed to pay your bill? • Is the facility closing? These are the only valid reasons a nursing home can ask a resident to leave. Does The Nursing Home Have To Send Me A Notice? The Nursing Home must send a written notice that states the reason for the discharge, the proposed date of discharge and the location of where you will be sent.

www.svlas.org | 1-888-201-2772

PLANNING AHEAD

Do I Have To Make A Will? No one has to make a will. However, a will allows you to state exactly which persons you wish to receive your property and it also allows you to name a person called an Executor who will see that your property is distributed as you wish.

What Happens To My Property If I Die Without A Will? There are different kinds of property. If you have a life insurance policy, you will have named a person called the beneficiary, to receive the money after you die. You don’t need a will in order for that person to get the money. If you own a vehicle, a home or a bank account with someone else jointly with the right of survivorship, that property goes to the joint owner once you die and you don’t need a will to make that happen. If you have other property and you die without a will, that property may be claimed by your spouse if he or she is living; if no spouse is living, then your children and their children may have a claim to your property. If you do not have a spouse or children, then that property can be claimed first by either or both of your parents if they are living and, if not, by your siblings and their children. Should I Have A Power Of Attorney? A document called a Power of Attorney allows you to name a person (friend or relative) who you completely trust to handle your business if you are unable to do so

because of illness, physical disability or if you become incompetent. The person you name is called your Agent. You can give your Agent the authority to deal with your bank, to apply for benefits for you like Social Security and Medicaid, to pay your bills and to sell your property if necessary. If you have not named an Agent and you become incompetent, someone will have to file papers with the Court to ask to have a Guardian appointed for you. There will need to be a court hearing and this process can take time. What About Medical Decisions? In a Medical Power of Attorney, you can name an Agent (friend or relative) to make decisions about your medical treatment if you can’t make those decisions for yourself. The doctor who is treating you and another doctor familiar with your case are the ones to decide whether or not you are capable of making decisions for yourself. If you have not named an Agent and you are not able to make medical decisions for yourself, your doctors will look to your next of kin to make the decisions that are needed.

www.svlas.org | 1-888-201-2772

SECURE YOUR SOCIAL SECURITY AND SSI BENEFITS

Right Now I Get My Social Security Benefits With A Paper Check; Is That the Best Way? A paper check could get delayed, lost in the mail or stolen. Even if you receive

it on time, you may have to pay to have it cashed if you don’t have a bank account.

My Social Security Check is Automatically Deposited in My Bank Account Each Month; Does That Mean My Benefits Are Safe? You could temporarily lose access to benefits deposited directly into a bank account if a bill collector tried to garnish that account. What is the Safest and Easiest Way to Receive My Social Security and SSI Benefits? You now have the option to receive your benefits on a pre-paid debit card. With a Direct Express Debit MasterCard, you don’t have to worry about checks getting delayed, lost or stolen. You also don’t risk your bank account being frozen by the Bank if you get behind on some of your bills. It is easy because each month your money is automatically deposited to your card account and available to you on your payment date. You don’t

need to wait for the mail or get yourself to the Bank and you don’t need to carry large amounts of cash. You can use your Direct Express card to make purchases wherever the Debit Mastercard is accepted and you can get cash at retail locations, banks, credit unions and ATMs. You can use it to set up on line payments to a utility and to buy money orders at a post office. Can Anyone Get a Direct Express Debit MasterCard? Anyone who receives a federal benefit payment can enroll in this program by calling 1 800 333 1795 to sign up.

This is legal information. If you want legal advice specific to your situation, you need to talk with an attorney. To find out if you are eligible for free legal advice or representation, you can contact Southwest Virginia Legal Aid at www.svlas.org or you can call toll free at 1-888-201-2772.

www.svlas.org | 1-888-201-2772

UNDERSTANDING SOCIAL SECURITY

I Am Unable To Work; How Do I Apply For Disability Benefits? You can apply for Social Security Disability Benefits on line at www.ssa.gov , by calling 1-800-772-1213 or by going to your local Social Security office. If you go to your local office to apply, it is best to call ahead for an appointment.

What Kind Of Information Will I Need To Apply For Benefits? You will need the following: • Your birth certificate or proof of citizenship; • A list of medical conditions (physical or mental including emotional or learning) that limit your ability to work; • A list of your current prescriptions; and • A list of all the doctor’s offices, hospitals, clinics and other health care facilities who have treated you together with their addresses. I Have Been Receiving Disability Benefits; But I Just Received A Notice That My Benefits Will Stop. What Can I Do? If you receive a Notice that your disability benefits will stop, you need to appeal this decision. You can file an appeal on line or by going to your local office and you need to have a copy of the Notice with you. If you wish

to continue to receive your benefits while Social Security considers your appeal, you must file your appeal within 10 days of receiving the Notice from Social Security. I Received A Notice That My Benefits Will Be Reduced Because I Have Been Overpaid. What Does This Mean? If Social Security believes they have paid you more than you should have received, they will explain in the Notice how the overpayment happened and what your appeal and waiver rights are. If you don’t agree that you have been overpaid or if you believe the amount is wrong, you can appeal by filing Form SSA-561-U2 which is available on line or at the local office. You must appeal within 60 days and your appeal must be in writing. If you believe that you should not have to pay the money back, you can request a waiver of collection. You must file Form SS-632; there is no deadline to file for the waiver but you must be prepared to show that the overpayment was not your fault and that paying it back would cause you great financial hardship.

www.svlas.org | 1-888-201-2772

MIXING MONEY AND RELATIONSHIPS

My Girlfriend And I Have Been Dating For Some Time And Are Thinking About Renting A Place Together And Possibly Getting Joint Cell Phone Accounts. Are There Any Reasons Why We Should Not Do This?

Yes, there are! Couples under the influence of the romantic high that occurs at the beginning of a relationship may entangle their finances before they have committed to a future together. Think about how hard it would be to break up if you had to get out of a cell phone contract, a residential lease agreement in both of your names or a car loan. Check out the YouTube video: Relationship DUI - are you sure you’re in love?

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DRIVER’S LICENSE SUSPENSION

My Driver’s License Is Suspended Because I Owe Court Fines. Without A Job, I Can’t Pay My Fines and Without A License I Can’t Get A Job. How Can I Get Help?

You can contact Southwest Virginia Legal Aid to apply online at www.svlas.org or you may call toll free to 1-888-201-2772 .

A new law enacted in 2017 makes it possible for people in your situation to meet their financial responsibilities and get their driving rights back. An organization called DRIVE TO WORK can assist you in setting up payment plans in each court where you have unpaid fines. If you wish, you can make regular payments to them and they will send the money out to the courts on a regular schedule for you.

www.svlas.org | 1-888-201-2772

HOW CAN I FIND OUT IF LEGAL AID CAN HELP ME?

To Apply For Legal Help:

You can call Toll Free at 1-888-201-2772 Monday through Thursday from 8:30 am to 4 pm or on Friday from 8:30 am to noon and 1 pm to 4 pm. Or you can apply on line 24 hours a day at www.svlas.org. When you call or go on line, you will need to tell us how many people live in your household and the total amount of the household’s income. You will need to explain to our Intake Paralegal the kind of help or advice that you need. If you have received notices, letters or court papers, be sure to have those documents with you when you call. Be prepared to give us an address where you can receive mail and a phone number where you can be reached and where Legal Aid staff can leave messages for you. If you call us on a day when we have many callers, you may need to leave a message and get a call back. Be sure to tell us when is the best time to reach you at the number you give us. You cannot call Legal Aid to apply for services for another person. If a friend or family member needs assistance, however, you can call us when that person is with you and our Intake Paralegal can speak with both of you.

www.svlas.org | 1-888-201-2772

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