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Law Line - Other Legal Issues

These messages only provide general information. If you have questions about your own situation, you should talk to a lawyer. For information about applying for Legal Aid, go to the Apply for Help page.

Expungement


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Suppose you have a criminal charge or conviction from some time in the past. You’d like to have that charge or conviction removed from your record. This is called expungement. You can file a petition to ask a Court for expungement.

There are two types of expungement.

(1) For criminal charges that are dismissed or if you are found not guilty, many of these types of charges can be expunged if there are no other criminal charges pending against you and sixty days have passed since the charges were dismissed. 

But, even if you meet these criteria, your criminal record will not be expunged if the charges against you were dismissed because you pled guilty to another offense as part of a plea deal.

You can find links to the papers you need to file to have these charges removed from your record on Legal Aid’s website, www.lawv.net.

(2) For criminal convictions, if you were found guilty or pled guilty, some non-violent felonies and misdemeanors can be expunged. It can be complicated to figure out whether you qualify. You should try to talk with a lawyer before you file.  

Multiple misdemeanors may be expunged. Only one felony conviction can be expunged, unless you have more than one that was part of a connected series of crimes.

Many crimes involving violence, or where children or the elderly were victims, may not be expunged. Check on Legal Aid’s website for categories of felonies and misdemeanors that CANNOT be expunged.  

There are many requirements to file for expungement of a conviction. There is a lot of paperwork to get together. You’ll also have to tell the court how you’re rehabilitated.

A certain amount of time must pass since you finished your conviction, sentence, or supervision by probation or parole, whichever is latest. You must wait one year after that time period is over for a single misdemeanor, two years for multiple misdemeanors, and five years to expunge a felony.

You can shorten the time frame to file if you complete an approved job readiness or substance abuse treatment program. Learn more about those programs on Legal Aid’s website

This recording does not include all the information required to file a expungement. Again, this can be complicated. You should try and talk to a lawyer. 

For more information about expungement, read this article.

School Absences and Truancy


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West Virginia law requires local school boards to have an attendance policy. This means that students are required to attend school, unless the absence is excused. In West Virginia, students are allowed to miss ten (10) unexcused days from school each school year. If a child has more than ten days of unexcused absences Child Protective Services may file a neglect petition against the parents. Criminal truancy charges may also be filed against parents and/or students. Truancy charges may result in fines, the parent being placed in jail, and placement of the student outside of the home.

Excused absences include absences resulting from school-approved activities; failure of the school bus to run; hazardous conditions that would cause harm to the student’s safety; doctor excused absences; absences that are allowed because of the student’s written educational plan; absences because of a serious illness or death of an immediate family member; and absences for religious instruction or observance of church ordinance. A parent must provide documentation of an excused absence to school officials.

If a student is required to miss a lot of school because of a chronic medical condition, or a physical or mental condition, a parent should ask for a medical waiver form from the county board of education office. Parents should take the form to their child’s doctor to fill out. This form should be returned to the board of education office.

If a student with a physical or mental condition is suspended or excluded from school because of his or her behavior, parents should talk to the school. Parents should ask whether the child has a behavioral support plan. Behavioral support plans can provide help to address these behaviors. If the student does not have a behavior support plan, the parent should write a request for an IEP meeting to talk about developing a plan. If the student does have a behavior support plan, a parent should write a request for an IEP meeting to talk about modifying the current plan or to make sure the plan is being followed by school staff.

As soon as a parent receives a written notice or letter about an issue with a child’s absences, the parent should immediately contact the school. The parent should talk to the school about the reasons for the missed days.

For more information about truancy, read this article.

 

I didn’t know my spouse did our tax return with wrong information. What can I do?


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Most married couples do a “married filing jointly” tax return. Marital deductions are larger this way. You may get a larger tax refund with a “married filing jointly” return.

To do a “married filing jointly” return, both spouses have to sign the joint return. By signing, you are saying the information is true. What if the information isn’t true or accurate? Then the IRS can come after you, or your spouse, or both of you for any tax owed.

So what happens if your spouse has been hiding information from you as well as the IRS? Of if your spouse forces you to sign a return that you know is false?

There is an “innocent spouse” defense. In these cases, the entire tax debt owed because of the wrong information can be shifted to the spouse who caused the problem. The IRS will not go after the innocent spouse. But realize these are difficult cases to win.

What do you have to prove to get Innocent Spouse protection? One of two things.

One possibility is that you did not know AND did not have any reason to know that the information was wrong. For example, you didn’t know your spouse was earning money under the table.

The other possibility is that you knew it was wrong, but your spouse forced you to sign the tax return anyway. You’ll have to prove you were coerced into signing, by threat of violence or other harm.

Finally, you don’t have to be divorced to win an Innocent Spouse case. But it is a factor the IRS will consider.

To file a claim for innocent spouse use Form 8857 available on IRS.gov.

For more information about innocent spouse relief for a tax debt, read this article.

 

The IRS is taking our whole refund for debts my spouse owes but I don’t.


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We all know the IRS can take your refund to pay back taxes. The IRS also can take your refund for some other special types of debts. The big three are student loan debt, child support or alimony debt, and some state tax debts.

So what happens if you’re married, and your spouse owes some of these debts? Does that mean you lose your tax refund because of your spouse’s old debts? The answer is “not necessarily.” You may be able to file what’s called an “Injured Spouse” claim.

Most married couples use a “married filing jointly” tax return. Marital deductions are larger this way. You often get a larger tax refund with a “married filing jointly” return instead of “married filing separately.“ But then the IRS will assume the whole tax refund is available to pay off any of these special debts owed by either spouse.

However, you may be able to protect your refund from being taken for your spouse’s debts. There are three requirements:

  • One, you are not responsible for the debt of the other spouse;
  • Two, you had your own wages you reported on the joint return; and
  • Three, you had federal taxes taken out of your wages.

Filing an Injured Spouse claim is simple. An injured spouse can complete FORM 8379, available on the IRS.gov web site. Or you can simply write INJURED SPOUSE on the upper left hand corner of the tax return itself.

Stepparent Adoption


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Do you want to adopt a stepchild/ren? What does stepparent adoption mean, legally speaking?

Stepparent adoption is the court process that transfers rights and duties from a child’s biological parent to the child’s stepparent. If your spouse has a child that is not your biological child, a stepparent adoption is a way for you to ask a court to make you a legal parent for that child. Your spouse who is the birth parent will join in the adoption.

The written permission of the other birth parent is required unless:

  • They have passed away
  • Have had their parental rights taken away due to abuse and/or neglect proceeding OR
  • The judge finds that the other birth parent has abandoned the child

Abandonment means that a parent goes more than six months without visiting, contacting or financially helping the child. You must present evidence, such as your testimony, to prove abandonment.

If the child is 12 years old or over, the child must consent to the adoption in front of a judge.

Stepparent adoption is forever. If the judge approves it, the other birth parents loses all custody and visitation rights. He or she won’t have to pay child support or have any other responsibilities for the child. Stepparent adoption will make the stepparent the new legal parent, even if he or she later gets divorced from the birth parent.

If the other birth parent does not agree to the adoption, you must prove to the court that the other birth parent’s rights should be taken away.

  • For reasons like abandonment OR
  • They are unfit to safely parent the child.

It is required that the child must live with the step-parent for at least 6 months before the adoption can be given. But, there is no set time that you must be married to adopt.

The court must find that the adoption is in the best interests of the child and that the adopting stepparent has enough income and resources to care for the child. To help the court get the information it needs, a home study will probably be done. The court can appoint someone to do the home study, or you can request to have a pastor or other professional complete the home study. Home studies can be waived in cases where the child has lived with the step parent for a long period.

While you do not need a lawyer for stepparent adoption, it may make it easier and increase the chances of your success. You will probably need a lawyer to at least help you write the forms or give you the information you need for the forms you file.

For more information about stepparent adoption, read this article.