The Law is Your Friend

Final (?) Update on Blog

noreply@blogger.com (Samuel Leven) — Wed, 28 Apr 2021 14:48:00 +0000

Back in 2013, I started this blog for two reasons - because I saw a lot of misinformation amongst the general public about the fields of law I practice that I hoped to correct and because I rather candidly hoped that running a blog like this would bring in some new clients for me. Over the course of three years, I made numerous regular posts on a wide range of topics within my fields of law, and I did, in fact, bring in a number of new clients too.

Then, life happened. In early 2016 my second child was born. On top of that, my caseload at work ballooned to a level that I simply did not have the down time at work that I once did. Even more than that, I simply started running out of ideas for blog entry topics. The every other week posting schedule I had been on simply became untenable. Finally, in October of 2016, I did a post about the status of the blog promising that I would continue to blog when inspiration struck, and I'd continue doing my annual changes in the law post, but that I would no longer operate on a schedule.

What I did not realize is that the combination of time and inspiration for posting would come less frequently than the even limited amount I'd thought it would in October of 2016. That post ended up being my last post of 2016. I did four posts in all of 2017, six in all of 2018, just one (the changes in the law update) in 2019, and two (the changes in the law update and a special on COVID) in 2020. And this post is my first of 2021.

The Virginia General Assembly this year passed a number of important laws, several of which directly impact my fields of practice. Landlord/tenant law in particular is rife with upheaval and change as a result of the ongoing coronavirus pandemic, and yet, I have lacked the time or energy to write about it. I have spent the last three weeks trying to find the time and energy to write my annual changes in law update post, but the reality is, even that I have not found the time or energy to do.

So, all of that tells me I need to take an honest look at this blog and say I think it's time to hang it up, so to speak. I will, of course, leave this blog up as people still read it, still ask me questions about its contents, and still sometimes even retain my services due to it, though I will need to add a disclaimer to note that I can no longer vouch for it being up to date. I will happily continue to monitor and respond to comments and answer e-mails about topics raised here, but I do think this is going to be my last post.

Doing this blog was a ton of fun when I was active, and having it even while I haven't been actively updating it has been a source of pride for me. I hope all of you have gotten as much out of reading this blog as I have had writing and maintaining it. Good luck out there and remember - the law is your friend.

Relevant Changes in Virginia Law - 2020 Edition

noreply@blogger.com (Samuel Leven) — Fri, 03 Jul 2020 18:16:00 +0000

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Every year, I put together a blog post with changes to the law that have occurred in Virginia relevant to my blog. Usually I do this in the spring, after the new laws are enacted but before they go into effect, but as you may have noticed there is a bit of a pandemic going on, so my time to put together this blog post has been limited.

There are actually a lot of interesting changes in law happening in Virginia this year - this was inevitable with the change in party control that happened following the 2019 elections - but many of the big ticket items are not particularly relevant to this blog. I do recommend, however, that you read one of the many fine articles written about some of these laws, as they impact everything from Confederate statues to gun control to casino gambling to state holidays to marijuana possession. As usual, though, this blog post will just focus on changes in the law that impact the topics covered here.

The laws referenced herein all went into effect on July 1, 2020.

Step-Parent Adoption Background Check

One change in the law involves a law that didn't get enacted. In my 2018 law change update, I noted that a new law had passed requiring the step-parent in all step-parent adoptions to pass a criminal background check. As I noted at the time, however, in recognition of the disruption this change might cause, the law was effectively a test, and expired July 1, 2020. Sure enough, the requirement proved exactly as disruptive and problematic as I feared it would, and the bills seeking to extend this law all failed - so as a result, the step-parent adoption background check provision was allowed to expire.

Pregnancy Expenses in Child Support

There is often a big blind spot in child support law, particularly involving unmarried parents, where a father only has to support the child after the child is born, while the mother has to bear all the costs of having the child. The Virginia General Assembly looked to address some of that imbalance this year with the adoption of SB 428. Under the terms of this law, if a petition for child support is filed within six months of a child being born, the noncustodial parent can be ordered to pay, in proportion to the parties' gross incomes, any "reasonable and necessary" expenses of the mother's pregnancy and childbirth that was not covered by insurance. Now, the statute does not define these expenses and as a result, they are arguably not limited to medical expenses, but could include things like child birth classes, pre-natal vitamins, and other such costs of a pregnancy.

Modification of Contractual Spousal Support Language

Once again, in my 2018 law change update I noted that a rather major change was made to the law regarding modification of spousal support that had been set by a contract or property settlement agreement. As I noted at the time, the law had previously been that if the contract did not lay out exactly how the spousal support was to be modifiable, then the support could not be modified no matter what. In 2018, the law was changed so that the default was that for all new contracts/agreements made after July 1, 2018, the default was that such support could be modified the same was as if it had been set by a court instead of an agreement, unless the agreement contained specific language that was included in the new Code Section to make the support non-modifiable. Well, this caused some problems because a number of people who really did want their spousal support agreement to be non-modifiable failed to use the exact language stated in the Code, and so the support was found to be modifiable even though this was clearly not the intent of the parties. As a result, this year the General Assembly passed HB 1501 which again amended the law. Now, it remains the default that spousal support set in agreement is modifiable (as was put in place by the 2018 law change), but now, to make that support non-modifiable, you just have to have language in the agreement indicating that it is non-modifiable, you do not have to use the specific words contained in the law.

Pendente Lite Spousal Support Guidelines

As has been discussed on my blog previously, if you need spousal support while waiting for your divorce to finalize, you can file for pendente lite spousal support - a motion that provides support just temporarily, until the case concludes. I noted in my previous blog post that pendente lite spousal support in the J&DR Court involves a formula for setting the support amount, and that in the Circuit Court (where divorce cases are held) many localities have adopted their own formulas but there is no uniform rule. HB 1500 has now changed this by applying the J&DR formula to pendente lite hearings in the Circuit Court as well. It also adjusted the formula to take into account changes in tax law, so the formula is now 26% of the payor's gross income less 58% of the payee's gross income where there is also at least one minor child in common between the parties, and 27% of the payor's gross income less 50% of the payee's gross income where there are no minor children in common. As before, however, these formulas apply only to pendente lite rulings - the final determination of spousal support is still made without reference to any formulas.

Tenants' Rights and Responsibilities

One of the biggest disadvantages tenants have in landlord/tenant law is a simple lack of knowledge of the law that a more sophisticated landlord usually has. HB 393 seeks to address some of that imbalance by requiring the Virginia Department of Housing and Community Development to put together a plain language list of tenants' rights and responsibilities. The law now requires that this list be provided by a landlord to all prospective tenants before signing a lease, and prohibits the landlord from taking any legal action against tenants (including eviction) for a lease violation unless and until the rights and responsibilities list has been provided to the tenant.

Fifth Amendment and Adultery

As I have addressed before, adultery remains highly relevant to Virginia family law, but proving adultery has occurred is exceptionally difficult because adultery, while almost never enforced, remains technically a crime in Virginia, and as a result a party who commits adultery can avoid having to admit having done so by pleading the Fifth. This has been a matter of some concern and consternation in the family law field for some time, leading to a range of potential solutions to decrease the cost of divorce litigation while easing the process for a spouse to prove that he or she was a victim of adultery. This year, the General Assembly looked to do that by adopting SB 433. SB 433 amends a provision of Virginia Law that prohibits courts from holding it against a party to a civil case if that party invokes a constitutional right (which would include pleading the Fifth). Now there is a specific exception holding that in any civil case for divorce, spousal support, custody, or visitation filed after July 1, 2020, "if a party or witness refuses to answer a question about [adultery] on the ground that the testimony might be self-incriminating, the [court] may draw an adverse inference from such refusal." In other words, the judge can (but is not required to) decide that you pleading the Fifth when asked about adultery means you are, in fact, guilty of adultery. This is a major change in family law that could substantially impact how family law cases involving accusations of adultery are litigated moving forward.

Conclusion

So those are the big changes impacting the topics covered by this blog. Those are not the only changes in these fields, I'd note, so if you have a question about how any of this year's law changes impact you - ask your attorney! If you don't have an attorney, then check out our initial consult policy in the link at the top of the page or by clicking here, and feel free to shoot me an e-mail at SLeven@thebaldwinlawfirm.com or give us a call at (703)281-0134. Our initial consultations are free for up to half an hour!

Virginia Family Law in the Age of COVID-19

noreply@blogger.com (Samuel Leven) — Fri, 20 Mar 2020 15:20:00 +0000

As always, before reading this blog post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

I know it's been a long time since my last blog post (for those who are curious, I did a post back in October of 2016 noting that my posting rate was going to drop dramatically, though I don't think I anticipated even then how dramatically), but for those who haven't noticed there's a bit of a crisis going on in the world, and it affects just about every aspect of life. Family law situations are included. In the past week, I and many other family law attorneys have been bombarded with questions. It struck me that a blog post was warranted.

This blog post is going to have two parts. In the first part, I will give a brief explanation of what the Coronavirus outbreak means for the legal system in Virginia. In the second part, I will address four of the most frequently asked questions I am seeing. I hope that this post can relieve at least a little anxiety during this difficult time.

Impact of COVID-19 on Virginia Legal System

On March 16, 2020, the Virginia Supreme Court declared a judicial emergency in all trial courts in Virginia. One of the main impacts of this declaration is that no "non-essential" and "non-emergency" trials or hearings will be held. What this means as a practical matter is that the only criminal cases that will be heard involve cases where the defendant is currently incarcerated (rather than out on bond), and the only civil matters will be emergency type matters - protective orders, emergency custody/visitation matters (for example, parental kidnapping), civil commitments, etc. Of some note, eviction proceedings currently appear to not be considered "essential" or "emergency" matters - as a result, while no official order has been given to stop evictions during the pandemic, evictions will be a practical impossibility due to courts not hearing the cases (and self-help being prohibited for residential evictions in Virginia).

Now it's important to understand that this is aimed at keeping people out of the courthouse. The courts themselves are not closed. There is plenty of non-essential, non-emergency business that can go on - just not if a hearing is required. You have an uncontested divorce? You can still submit the paperwork and get it finalized. You need to get a lawsuit started? You can still file it and have it served. The court is operating, it's just limiting its requirements for appearances in person. Further, filing things in person in court is still allowed, but discouraged. Courthouse security has been ordered to disburse any large gatherings - as a result, you are encouraged to mail any filings you have to the court or call the clerk's office and see if they have a preferred alternate procedure (some courts are adopting outdoor drop-boxes, for example).

Further, during the judicial emergency all deadlines are being tolled. There's some debate about exactly what that means, but at a minimum, it means if you have a trial court deadline (say, to file an Answer, respond to discovery, etc.) which is due during the emergency period, at a minimum it is now not due until after the emergency is done. That said, it's always best to meet your original deadlines if possible.

Finally, the judicial emergency by law can only last up to three weeks, so this one is set to expire on April 6th. However, the Virginia Supreme Court is allowed to renew the emergency, and I will be shocked if that does not happen.

Now, you may note that all of this is for trial courts. No judicial emergency has been declared in our appellate courts (Court of Appeals and Virginia Supreme Court). All deadlines there remain the same. However, the Court of Appeals has now requested that all filings (as opposed to just briefs and appendices, which had previously been the rule) be made electronically, and oral arguments will be done by phone through at least the end of June. The Virginia Supreme Court has made no changes so far except moving their upcoming slate of oral arguments to being by phone.

If you have a current court case going on, I would strongly recommend reaching out to your attorney and asking how all of this impacts your case.

Now, with that brief summary out of the way, the family law questions I'm seeing a lot of:

My business has closed due to the outbreak and I'm making no money - do I still have to pay spousal/child support?

The short answer is yes. The court order requiring your payment remains in full effect. Now, first of all, if eligible, you should immediately pursue unemployment (some states have waived the waiting periods and increased payouts already) and/or the new emergency sick leave policies, but it's possible you won't be eligible for one or both of those. Otherwise, I'd suggest you consider the same options I suggested for government employees during a shutdown. There is one big problem with that list, though. Option 2 - filing a motion to modify and getting a pendente lite hearing ASAP - is not available. A pendente lite support hearing is unlikely to be considered essential or an emergency. That said, option 4 is, while not necessarily advisable, at least slightly less dangerous in this situation. Why? Unless your failure to pay support is leaving the other party destitute, a contempt proceeding for failure to comply is also unlikely to be considered essential or an emergency. This means that by the time you could realistically have a contempt proceeding brought to court, you will likely have income again, and be able to get yourself out of the contempt. This is in no way a guarantee, however, so you should tread carefully.

Option 1, trying to reach an agreement, is always the best answer. If you can't do that, then option 3, sucking it up and paying, is your best bet as long as possible. Regardless of what you do, however, you should still consider filing and serving a motion to modify immediately. This would allow the court to potentially make some retroactive modifications to your support obligation once the dust settles to take into account the difficulties you are encountering now. However, the court can only go back as far as the date you filed and served your motion, so the longer you wait to do that, the less retroactive modification will be possible. You should speak with an attorney (over the phone - not in person!) as soon as possible.

I don't trust my child's father to be practicing proper social distancing - do I still have to let him have his visitation?

This is a little tricky. A court order is a court order, and you are expected to follow it. If, however, you believe allowing the other parent to have visitation actually endangers the child, or anyone the child comes in contact with (maybe the other parent is not taking social distancing seriously, maybe they're three states away and visitation violates CDC's travel advisories, etc.) it is very likely that the court will say this is an emergency matter, and will allow you to make a motion to suspend visitation for the time being. As a result, you should contact your attorney right away if you are in this situation.

The reason it is so important to be proactive is that withholding visitation will, very likely, also be seen as an emergency in many courts, which means you could be brought up for contempt fairly quickly. Moreover, there is a decent possibilities some police departments will forcibly enforce the existing court order. As a result, if this is a real concern you have, you should definitely take action first - do not simply unilaterally withhold visitation.

My ex agreed to let me stop paying support until I get back to work - what do we need to do to enforce that?

Court ordered support cannot be waived or reduced without a court order. If your ex has agreed to a temporary modification, that's wonderful, but you still need to convert that agreement into a court order. Talk to your attorney and get an agreed order drafted up. Once signed by everyone, it can be submitted to the court and will become fully enforceable once entered by a judge. Again, courts are not closed, and an agreed order does not require a hearing, so this is something that can be done even during the judicial emergency.

My wife and I are separated in contemplation of divorce, but she's been staying with her elderly parents who are at high risk from COVID-19. We'd both feel better if she was back home and not around them - can I let her move back in without restarting our separation clock?

One of the painful realities of family law is that generosity and good intentions can often backfire if you aren't careful. This kind of situation can be ok, but you have to be very careful about how you do it. Read up on how separations are lost and separation under the same roof so you can take the precautions necessary. Pay particular attention to the fact that you need an adult witness to testify to your continued separation - this may be difficult during the social distancing period. However, if you get that squared away, you should be able to do it.

Conclusion

The current Coronavirus outbreak is impacting all aspects of life - including our legal system generally and family law specifically. If you are involved in a family law matter and are concerned about how all of this impacts you, please review our initial consultation policy, and if you qualify feel free to give us a call at (703)281-0134 or shoot me an e-mail at SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to 30 minutes! Please note that we are not accepting in-person consultations until the current crisis passes - all consultations will be by phone or e-mail until then.

Relevant Changes in Virginia Law - 2019 Edition

noreply@blogger.com (Samuel Leven) — Wed, 22 May 2019 15:52:00 +0000

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

As I have done every Spring since I began this blog, today I will be giving a summary of new laws
that impact or influence topics covered by this blog - particularly those that may impact posts I have previously made here.

All laws listed here are effective as of July 1, 2019.

Single Filing Uncontested Divorces

Uncontested divorces in Virginia are frequently legally simple, but procedurally complex. By this I mean the actual law regarding handling of these divorces is simple, but the actual process of getting them done is complex, and frequently requires lawyers to be involved in even the simplest uncontested divorces. One of the annoyances of handling uncontested divorces is that they require a minimum of two trips to the courthouse. First, you have to go to file your Complaint for Divorce to open the uncontested divorce. Then, you can proceed with all your remaining paperwork - a waiver of service of process, affidavits, and the Final Decree itself. This is all because, as a general rule, someone cannot waive service of process or complete an affidavit in a court case that does not yet exist. However, HB 1945 has now changed this by adding an exception to this general rule, allowing uncontested divorces to proceed where a waiver of service and affidavits were signed a "reasonable amount of time" prior to the case being opened. The practical impact of this is that an uncontested divorce will now be able to be completed with a single trip to the courthouse - all paperwork can be prepared in advance and filed at the same time. This will make uncontested divorces a little less complicated, a little less time consuming, and, hopefully, a little less expensive.

Tenant's Redemption Right Dramatically Expanded

In October of 2014, I wrote a post about a special provision in the law for tenants called a "redemption." A redemption is almost like a get out of jail free card for a tenant - it allows a tenant, once every twelve months, to avoid being evicted by paying all rent due, late fees, court costs, and attorneys' fees after a five day pay or quit has been served and eviction proceedings have begun. Pay the right amount on time, and the eviction process is terminated.

Well, as I noted at the time, there's a big catch. You cannot dispute the amount owed, and you have to pay the redemption at or prior to the first court date (the first return). HB 1898, however, has changed this. Now, under the new law, a redemption can be paid up until two days before the eviction itself is carried out (so, after the first return, after the trial, and after the writ of possession has been issued). This means a tenant can now have his day in court to challenge the amount he or she supposedly owes without losing their right to redeem. Now, there's another catch. HB 1898 only applied to Virginia Residential Landlord and Tenant Act (VRLTA) leases. You may recall from my changes in the law blog post last year, that all differences in the law between the VRLTA and common law/chapter 13 residential leases had been abolished. Well, HB 1898 (along with one or two more minor law changes) this year applied only to VRLTA leases, and as a result have again created differences between the two. I honestly believe this was an unintentional oversight by the General Assembly, and will be fixed, but it does emphasize the point that if we really want all residential leases to be treated the same, it's time to just make the VRLTA applicable to all residential leases (or, alternatively, repeal the VRLTA and make chapter 13 applicable to all residential leases). So, changes along those lines may be coming - stay tuned.

Writ of Eviction Established

Speaking of writs of possession, however, they will actually no longer exist as of July 1st. SB 1448 changes the name "writ of possession" to "writ of eviction," and provides that such writs must be issued within 180 days of the court order granting possession, and must be executed within 30 days of being issued.

Contract Statute of Limitations Loophole Closed

You may recall from my blog post on statutes of limitations that the statute of limitations in Virginia for a written contract is 5 years, but for an unwritten contract is 3 years. Not mentioned in that post, but also important to note, is that Virginia law has a catch-all, which says the statute of limitations for any common law lawsuit for which a specific statute of limitations is not set out in the Code is 2 years. In recent years, defendants discovered a rather devious loophole that a number of courts upheld - namely a contract that was written, but not actually signed. The fact that the contract was written meant that it could not be an unwritten contract, as specified in statute for the 3 year statute of limitations, but the fact that it was not signed meant it could not qualify for the 5 year statute of limitations for a written contract (as the Code specifically required the writing to be signed by the party being sued for the 5 year statute to apply). As a result, several defendants sued after two years but before three years, successfully convinced courts that the catch-all 2 year statute of limitations applied, and got their cases dismissed. HB 2242 now closes this loophole by making written but unsigned contracts specifically subject to the 3 year statute of limitations.

Conclusion

This year's General Assembly session did not produce as many game changers as last year's, but nonetheless provided some very exciting modifications. I am particularly looking forward to integrating single filing uncontested divorces into my practice.

Classic Classic Law is Your Friend: Support Payments During a Government Shutdown

noreply@blogger.com (Samuel Leven) — Fri, 28 Dec 2018 19:30:00 +0000

In light of current events, I thought it would be a good time for me to whip out this oldie but goodie I published during the government shutdown in 2013, and republished during the short government shutdown earlier this year. Yes, it is kind of sad how many times I've had to use this same post... It is targeted towards my readers who are federal employees or contractors who will not get paid during a shut down, or who are involved in a family law case with such a person. This post addresses what will happen to your spousal or child support payments (be it as an obligor or obligee) and some options to alleviate the pain from support if you are a support payor who suddenly does not know when your next paycheck will be coming.

"As always, please review my disclaimer before reading this post by following the link above or by clicking on this link. As always, all legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

As an attorney who practices in Northern Virginia, it's fairly unsurprising that many of my clients, opponents, potential clients, etc. are federal employees. Federal employees face an unusual array of challenges when it comes to family law to begin with. Consider, for example, an undercover intelligence official, who cannot submit his true paystubs to court, cannot explain to the court why he cannot submit his true paystubs, and cannot even tell his lawyer why he cannot submit his true paystubs. Well, now federal employees are facing a whole different issue - what to do with those spousal and child support payments they might have coming due when they aren't getting paid, either because they are furloughed (meaning they cannot get a new job in the meantime, but have no guarantee of ever getting paid for their time off), or because they are working without pay (although they at least know they will get paid eventually).

The fact of the matter is, child and spousal support are a continuing obligation, and a temporary halt in your pay does not relieve you from your obligation to pay. There are options available to you, however, and I hope to cover those in this blog post.

Option 1 - Agreement

Perhaps the simplest way to solve this problem would be an agreement with the other party. If you are on good terms with your ex, this may be a viable option. You should contact your ex immediately to discuss the issue. A reasonable solution might be to suspend payments while you are going unpaid, with an agreement that if you do not get back pay, those payments will be wiped out, but if you do get back pay, you will then pay the amounts you didn't pay while your payment was suspended.

Please note, however, that if DCSE is involved in your case, this method will not be possible, as DCSE cannot agree to short-term changes without court involvement.

Option 2 - Court Order

A court ordering support is required by law to consider only your "current" situation. If you are currently being unpaid, and it is not your fault, then a court has to consider your income at $0, and re-do your support accordingly. Unfortunately, that's where the simplicity of this solution ends. Consider, for example, that from filing until trial, it could easily be many months, even close to a year, and the shutdown will almost assuredly be over by the time your case is heard. An alternative option would be to file for a modification, knowing it won't be granted, but then to file a motion for pendente lite relief to get your support reduced near immediately (a motion for pendente lite relief can usually be heard within a week or two of being filed, and sets your support pending the final hearing). Once the shutdown ends, you can then withdraw your motion.

This is a complicated process, however, and the odds that you will make a mistake without representation are high. If you do hire an attorney, you are likely to end up spending more on attorneys' fees than you save in support.

Option 3 - Suck it up and Pay

If the prior two options are not available to you, then you may just need to scrape the money together and pay, recognizing that it unlikely that the shutdown will last beyond one monthly payment (although given the current acrimony in Washington, that's certainly not a guarantee). There's not really much more to say about this option, for the majority of people for whom option 1 is not available, my guess is this option will be your best bet.

Option 4 - Unilateral Non-payment

This is the most dangerous option. If options one and two aren't available to you, and option three is actually impossible for you, then you may have to just not pay. Maybe DCSE and/or your ex won't take any action, but there is a chance they will. If they do, you will definitely be found to have an arrearage for the unpaid amount (which will accumulate interest), and there's a good chance you'll also be ordered to pay attorneys' fees. You will also risk going to jail, although jail time on a first violation is unusual and it cannot be ordered if you are able to prove that you actually could not pay through no fault of your own. There could be some negative long-term consequences to taking this option, but if it's your only choice, then it's your only choice.

Conclusion

The government shutdown presents a unique challenge to federal employees who owe support. The presumed temporary nature of the shutdown narrows the options available, and just about every option has some undesirable component to it. Nonetheless, there are options, and you should know them before you take action. If you are a federal employee who is going unpaid through this shutdown and you would like to review what options are best for you, or if you are being paid support by a federal employee and want to know what actions to take to protect yourself, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation. Your initial consultation is free for up to half an hour!"

Reconciling in Virginia - The Law When You Work Things Out

noreply@blogger.com (Samuel Leven) — Wed, 13 Jun 2018 16:45:00 +0000

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, an legal principles discussed in this post apply only to the Commonwealth of Virginia.

Introduction

What's the best thing I, as a family law attorney, can possibly hear from a divorce client? Well, would you be surprised if I told you my favorite phone call from a divorce client is the one that starts with "Sam, stop working on my case, we've decided to reconcile"?

When I began practicing family law, I had big plans in mind for how I was always going to try to convince my clients to reconcile first, recommend counseling, anything to make it work. It turned out, though, I had bought into the pop culture hype that people rush into divorces these days, when in reality they really don't (I dive into this a little further in my blog post discussing how the divorce rate is actually much lower than 50%). As a result, by the time people come to me about a divorce, the odds are they've already tried most everything, and the marriage is already broken beyond repair.

Nonetheless, life happens, and while it's not nearly as often as I'd once hoped, the reality is I've had several cases over the years now that ended not with a Final Divorce Decree, but with the couple back in the same home, happily moving on with their lives together. I even got an invitation once to the wedding of a couple whose divorce (from each other) I had handled a couple years earlier.

Now, you might look at this and say, "oh, well, there can't possibly be legal consequences from reconciling! That's just a return to how things were - so everything resets, right?" Well, it's actually not that simple. The reality is, depending on how far along you were in your divorce process, what kinds of orders were entered, and whether or not you have kids, there are legal implications from a reconciliation, and actions that you have to take in order to protect yourself going forward. In this post, I will discuss some of what happens under the law when you and your spouse begin the divorce process, but then ultimately work things out.

Simplest Case: You've Separated, But That's It

So, the simplest case is that you separated from one another, but that was it. No agreements were signed, no court orders were entered, no papers signed. You just each lived apart for a while, then decided to get back together. Here everything is simple - there really aren't legal steps you need to take. Just resume living together. If one of you was renting a place and are leaving that rental, make sure you talk to the landlord if you need to terminate your lease early. But from a matrimonial law standpoint, you're set.

Slightly Tougher: You Have a Signed Agreement

Now, let's go to the same scenario, but you've also already signed a separation or property settlement agreement and begun abiding by its terms. However, let's assume still nothing's been filed in court, and then you reconcile. There are a few things to know. First, any transfers of property, changes of name on accounts or loans, etc., will survive your reconciliation. So, if you want to get things back to how they were you will need to go through that process again. This is particularly important for real estate, where you want to be able to take advantage of the benefits of being tenants by the entirety (a form of joint ownership only available to married couples). Second, understand that by law a separation or property settlement agreement is terminated upon reconciliation, however, if your agreement has a reconciliation clause in it, it may survive your reconciliation. In that case, you'll need to decide how, or if, you want the agreement to survive - particularly what happens to any support obligation while you are back together - and you should consider signing an amendment to put those changes into effect.

Remember that just because you worked things out now doesn't mean something won't go wrong again some day. If, for example, your agreement obligates you to pay support of $1,000 a month, you reconcile and don't change anything, and then separate again in 5 years, it's possible your spouse will then come after you for 5 years of back payments ($60,000!). You may have defenses to that claim, but they wouldn't be a guarantee - edit your agreement now, when you're on good terms.

What if Orders Have Been Entered?

Now, taking it to the next level, you might be asking what happens if custody, visitation, child support and/or spousal support orders have been entered before you reconcile? Well, the first thing to do is figure out what kind of orders they were. Were they pendente lite orders (orders entered after a short hearing just to determine what arrangements will be while your case is pending) or final orders? If they were pendente lite orders, you can simply withdraw (or non-suit) the case in which those orders were entered, and by operation of law pendente lite orders terminate the moment their case terminates. If they were final orders (say, from the J&DR Court), however, you will need to actively terminate the orders. To do this, you will need to file a petition with the court that issued the order(s) (unless venue was transferred by the order(s)) seeking a modification based on a material change in circumstances, and then submit an agreed order terminating the order(s).

Again, the issue here, much like with agreements, is primarily protection if things go wrong down the line. If you are reconciled for five years but then split again, you don't want to have to prove that you adequately supported your child while you were all living together to make up for your not directly paying the ordered child support. You may be able to defend against the back support claim, but it's not a guarantee - and it could get very expensive in legal fees. It's always safer to just not have a lingering order.

What if We Divorced?

Sometimes a reconciliation doesn't happen during the divorce process. Sometimes it takes that time fully and completely away to realize that you've made a mistake, or that you've each grown. So, yes, we do sometimes see reconciliations of couples that have already completed their divorce.

What you need to do in this event is going to be largely similar to the prior section, except that you almost assuredly only have final orders in place, not pendente lite orders. Moreover, if you re-marry, any spousal support obligation would terminate at that point. However, custody/visitation and child support orders would not, and still need to be taken care of.

There is an additional concern also at this point with property. If you never transferred any real estate or similar property prior to your divorce, then upon your divorce you became tenants in common in any real property. If you get re-married, this does not get automatically undone, you will need to actively re-title your property in order to become tenants by the entirety again. Additionally, any accounts, retirement funds, life insurance policies, etc. in which you named your spouse as your beneficiary had those beneficiary designations automatically revoked at the time of your divorce. Even if you never notified the companies of the change, you will need to re-filed your beneficiary designations in order for your spouse to again be your beneficiary.

Finally, when you divorce, if you divided any retirement accounts, it is likely that you had an Order or Orders entered to effectuate that division (frequently called Qualified Domestic Relations Orders, or QDROs). For any defined contribution plans (401(k)'s, etc.) the division has likely already been completed, so you each now have your own accounts - it's fine to keep things that way. For defined benefit plans (pensions, etc.), however, you will need to get an Order entered terminating the prior division Order, and get that new Order to the account administrator. Otherwise, when you retire, you might be surprised to have money taken out and sent to your spouse. While if you are still together at that point it may not matter, it would still be an inconvenience, and there can be administrative expenses involved - better to get that taken care of now.

Conclusion

The best news I can get as a divorce attorney is that my client and his or her spouse have found a way to work things out and have reconciled. Nonetheless, my work does not end there, as I still need to ensure my client protects himself or herself and takes the legal steps necessary for the reconciliation to be smooth and complete. As always, the smartest thing you can do if you are reconciling and aren't sure what your legal needs and obligations are as a result would be to consult an attorney. If you have been going through a divorce (or are already divorced), are planning to reconcile, and want to know what you legally need to be doing, feel free to review our initial consultation policy above and then to shoot me an e-mail at SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up a consultation. Our initial consultations are free for up to half an hour!

Relevant Changes in Virginia Law - 2018 Edition

noreply@blogger.com (Samuel Leven) — Mon, 23 Apr 2018 20:22:00 +0000

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

[UPDATE: Some information in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog posts for 2019 and 2020 for more information.]

Introduction

As I have done every April since I began this blog, today I will be giving a summary of new laws that impact or influence topics covered by this blog - particularly those that may impact posts I have previously made here. This year it turns out had a pretty heavy dose of family law changes that relate to past blog posts - so I will cover those here. There was also one big change to Landlord/Tenant Law that I also need to cover. So, with that, here we go.

All laws listed here are effective as of July 1, 2018.

All Residential Leases the Same

Last year, I made a big deal about a law that made the VRLTA apply to almost all residential leases, and that greatly reduced the number of differences between VRLTA and common law/Chapter 13 leases. Well, this year, the final act has come. HB 857 passed and signed into law this year eliminates all remaining differences between the VRLTA and common law/Chapter 13 leases, such that all residential leases are now governed under effectively the same terms, whether under the VRLTA or not. Perhaps most importantly - this includes the VRLTA's provision prohibiting lease provisions that waive any rights under the law.

Retirement a Material Change in Circumstances

Back in 2014, I put together a post about the dangers of retiring if you owe spousal support, and the tendency of courts to consider that a voluntary action such that spousal support will not get modified. This year, SB 540 is changing that. Under the new law, the payor of spousal support reaching full retirement age, as described by the federal Social Security Act, is automatically to be considered a material change in circumstances, and instead of outright dismissing motions to modify spousal support due to retirement, the Code now requires the Court to consider a new set of statutory factors when making this decision. As a result, being an indefinite spousal support payor should no longer mean you never get to retire.

Agreed Spousal Support is Modifiable by Default

In 2016, I did a post listing the five biggest mistakes I see people make in their divorces when not represented by an attorney, and number one on that list was signing a Separation Agreement/Property Settlement Agreement that sets spousal support, but does not say if or how the support is modified. Under current law, spousal support set by an agreement is only modifiable in the way described in the agreement, and if no way is described, the support can never be modified. SB 614 will now flip that around. For all Separation Agreements/Property Settlement Agreements entered into after July 1, 2018, spousal support in said agreement will, by default, be modifiable in the exact same way as if the Court had set that spousal support, unless specific language is included in the agreement making the spousal support non-modifiable (the language required to be used can be found in the new law). This new law will provide substantial relief for people who try to do their divorce themselves, but don't think about every eventuality the way that a lawyer would.

Background Checks for Step-parent Adoptions

One of my favorite practices that I conduct is adoptions, and amongst my favorites types of adoption cases are step-parent adoptions. In a step-parent adoption, the spouse of a child's parent decides that he or she is ready to have that child not just be "like" their own child, but actually be their own child, and legally adopts the child. I did a blog post on step-parent adoptions back in March, 2014. Unfortunately, however, as with many areas of law, some people use this process to abuse the system. In recent years, several cases have arisen where convicted sex offenders or other criminals who would not be eligible to adopt a child have gotten around that prohibition by marrying a child's parent and using the permissive and largely passive step-parent adoption process to adopt the child. Several cases, unfortunately, ended with the step-parent, now legally the child's parent, divorcing the parent, getting court ordered custody or visitation of the child, and abusing the child while in his or her care. HB 227 will look to solve this problem. This new law, effective July 1, 2018, authorizes step-parents pursuing a step-parent adoption to receive a formal criminal background check on themselves from the Virginia State Police, and then requires that step-parent to submit the background check to the court for review prior to the granting of a step-parent adoption. It is sad that the General Assembly felt this step necessary, as this will now prolong and increasingly complicate the step-parent adoption process that had previously been intentionally simple, but unfortunately the lengths to which some abusers go to find victims has made some kind of reform necessary. That being said, the General Assembly recognized the impact this may have on the process, and so the law is only experimental. Unless a new law is passed extending it, HB 227 will expire on July 1, 2020.

Mixed Custody Child Support

In 2014, I did a post laying out how child support is calculated, and then I listed a series of complications. Complication 4 in that post was when children have varying custody arrangements (sole vs. split vs. shared). At the time, I noted that the Code was silent as to how these child support calculations were to be done, and instead you should try a few different approaches and come to court with the one that comes out best for you while prepared to argue why that's the right approach to take. HB 1361 has now changed this. The law now specifically addresses how to deal with cases where kids with shared custody have differing numbers of days with each parent, how to do the calculation when at least one kid is in a sole custody arrangement and at least another is in a shared custody arrangement, and when at least two kids are in a split custody arrangement and at least another is in a shared custody arrangement. The new calculations are very complicated, but it is now one less area to potentially fight over in court.

Conclusion

While impossible to convey in a single post like this, the family law changes listed herein are, to some degree, game-changers in the field. I'm very excited to integrate these new laws into my practice.

A Warning to Virginia's Same-Sex Parents

noreply@blogger.com (Samuel Leven) — Wed, 14 Feb 2018 20:12:00 +0000

As always, before reading this post, please review my disclaimer by clicking the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

In October of 2014, the United States Supreme Court lifted a stay on a Fourth Circuit ruling that made same-sex marriage legal in Virginia. Suddenly, same-sex couples across Virginia found themselves with the right to marry, and took advantage of it quickly.

Shortly after this ruling, I wrote a blog post laying out some practical considerations for same-sex couples in Virginia in the "new world" of legal marriage. I pointed out that while the new ruling meant that same-sex couples can get married, it did not retroactively make same-sex couples married, and as such there were many legalities a same-sex couple needed to go through to take full advantage of their new legal rights. One issue I did not discuss, however, was children, and a new ruling from the Virginia Court of Appeals makes clear that I should have.

Just yesterday, the Court of Appeals issued its published opinion in the case of Hawkins v. Grese. The case involved two women who had been in a relationship from 2004 to 2014. In 2007, the women decided to have a child, and so Grese gave birth to a child conceived through artificial insemination. Due to Virginia's marriage and adoption laws at the time, Hawkins was unable to adopt the child, nor was she named on the child's birth certificate.

In 2014, before the change in the marriage law went into effect, the couple broke up - but their break up was amicable, and they shared custody of their child.

However, in 2016, they came into conflict, and Grese began withholding the child from Hawkins. After protracted custody and visitation litigation, the Court of Appeals found that Hawkins is not a parent of the child, and subsequently Grese has all the protections of a parent against Hawkins in the custody and visitation context (see my post on third-party custody and visitation for an explanation of what that means for Hawkins). As a result, the Court of Appeals found that Hawkins had not overcome the "parental presumption" and awarded sole custody to Grese (note that the appeal did not address the question of visitation). The Court of Appeals further included in its order this little nugget: "we hold that where custody disputes are concerned, the term 'parent' is a relationship to a child only through either biological procreation or legal adoption."

So What Does This Mean?

The main thing it means is that if you weren't married at the time you and your partner had a child, you are not a legal parent of that child unless you've adopted that child or are the child's biological parent. For a same-sex couple, this means that if you had a child any time before 2014 and it was your partner's biological child, you must adopt that child in order to have legal parental rights. This is true for an opposite-sex couple as well.

If you don't adopt the child, it doesn't matter that you were not allowed to get married at the time - you don't retroactively get treated as though you were married, so you must adopt in order to have those parental rights even if you are married now.

What About for Same-Sex Parents Who Were Married When the Child Was Conceived/Born?

I included a little nugget in my introduction that should scare even married same-sex parents (and, heck, married opposite-sex parents who used a sperm or egg donor to conceive) - the part about "parent" only if the child is biologically yours or legally adopted. I think this statement was more broad than the Court of Appeals meant it to be and that this only applies to a couple that was not married at the time the child was born. This is because Virginia has a statutory scheme creating what's called "presumed" parents - wherein if you are married at the time you give birth, your spouse is automatically considered the other parent unless proven otherwise, and put on the birth certificate. This rule originally only applied to husbands, but has now been extended to same-sex couples by another US Supreme Court case.

Moreover, Virginia's statutory scheme about artificial insemination specifically states that "the husband of the gestational mother of a child is the child's father." While the language is obviously gendered still, it is pretty clear, to me at least, from current case law that this rule would be extended to same-sex spouses (although I'd note for same-sex male couples that the Virginia law regarding surrogacy has its own complications for same-sex male couples). As a result, I believe that if you are married at the time the child is conceived and born, you will still be considered the child's other parent, notwithstanding the implications of the Court of Appeals' loose wording. However, this somewhat loose language of the Court of Appeals might make you want to consider adopting the child anyways.

What Should We Do About This?

Well, the answer is clear - if you have any question at all in your same-sex relationship of whether or not you will be considered your child's parent in the unfortunate event your relationship ends, you should adopt your child immediately. If you are married, the process is pretty simple (you can see my post on step-parent adoptions here), but even if you aren't, it's not too complicated. Obviously, having an attorney assisting you can help.

Conclusion

If you have a child with your same-sex spouse or partner, the Virginia Court of Appeals decision yesterday in Hawkins v. Grese should give you some pause to make sure the law considers you that child's parent. If you aren't, or even if you're unsure, it's time to adopt that child to protect your parental rights. If you need help figuring out if you are a child's legal parent, or need help adopting your child with your same-sex spouse or partner (or even your opposite-sex spouse or partner), feel free to review our initial consult policy (link above or here) and to call (703)281-0134 or shoot me an e-mail at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour!

Why the New Tax Law Makes 2018 the Year to Get Divorced!

noreply@blogger.com (Samuel Leven) — Wed, 31 Jan 2018 21:11:00 +0000

As always, before reading this post, please review my disclaimer by following the link at the top of this page or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

UPDATE (4/27/18): The proposed law in the General Assembly mentioned below did not pass in 2018. As a result, as far as I know, there is currently no plan to review or revise the child support guidelines in Virginia as a result of the potential impact of the tax law on spousal support. The General Assembly will likely consider this again in 2019.

Introduction

"In this world nothing can be said to be certain, except death and taxes." Benjamin Franklin's wise words, written many years ago, seem to resonate even stronger these days. Taxes impact a shockingly large percentage of what we do in life - everything from our charitable donations to housing decisions to career and business choices. It should be no surprise, then, that taxes play an outsized role in divorce cases as well. It also should not be too surprising that when the Republican tax bill was passed into law late last year, the far-reaching bill included provisions ready to wreak havoc on divorce law.

The most obvious way that the tax law impacts divorce is in the field of spousal support (alimony). Prior to the new tax law, spousal support was considered taxable income to the payee and tax deductible to the payor, unless the parties agreed otherwise. The new tax law changes this - spousal support will now become like child support, neither taxable to the payee nor deductible to the payor. This change, however, is not as simple as it seems. It will make divorce cases harder to settle, child support and property decisions more complicated, and will squeeze the financial resources of already resource-squeezed divorcing families.

However, there are two twists. While most of the tax law went into effect beginning January 1, 2018, the change to spousal support does not go into effect until January 1, 2019. This means we know this change is coming in advance. The second, even more important twist, is that pre-determined spousal support is grandfathered. This means all spousal support paid as a result of an order entered prior to January 1, 2019 will still be deductible to the payor and taxable to the payee after January 1, 2019.

In family law, we routinely try to discourage couples from moving too fast. Divorce is a major life decision, and not one to be taken lightly. But, we family lawyers would be doing a disservice to our potential clients if we did not make this abundantly clear - if you are contemplating a divorce, 2018 is the year in which to do it. Beginning in 2019, divorces will be harder, more confusing, more financially draining, and less likely to settle. If you're thinking of getting divorced - the time has probably come to make a decision.

"Grandfather" Clause

Rules and regulations about the new tax law are still being written, so read this with the caveat and understanding that some of this is still subject to change, but here's the basics. All spousal support orders entered on or after January 1, 2019 (with the exception of modifications mentioned below) will be subject to the new rules - the support will not be taxable to the payee nor deductible to the payor. These orders include not only new divorces, but modifications of existing spousal support orders (again with the exception of what is noted below).

So, all spousal support orders entered prior to January 1, 2019 will be subject to the old rules for so long as that order is in effect - meaning support resulting from those orders will still be taxable to the payee and deductible to the payor until the support is modified or ends.

All spousal support orders resulting from an agreement entered prior to January 1, 2019 will also be subject to the old rules for so long as that order is in effect - meaning support resulting from those orders will still be taxable to the payee and deductible to the payor until the support is modified or ends.

Finally, all modifications of spousal support agreements or orders that were entered prior to January 1, 2019 will be subject to the old ruled unless the modification order or agreement states otherwise.

So, the new rules will apply to all new spousal support orders and agreements entered after January 1, 2019 and all modifications to old agreements or orders that specifically state the new rules apply.

Beginning January 1, 2019, the old rules will still apply to all spousal support orders and agreements that were entered before and have not been modified since January 1, 2019, and to all modifications since January 1, 2019 to old spousal support agreements and orders that did not specify that the new rules apply.

Impact on Settlement

The old tax treatment of spousal support is a friend to many family law attorneys trying to settle cases. This is because when parties cannot agree on how a piece of property is to be divided, it is quite common to turn to spousal support as the solution. Instead of financially dividing the property directly, the higher earning spouse agrees to pay a certain amount of spousal support to the lower earning spouse in exchange for the lower earning spouse waiving his or her right to the property. The higher earning spouse will frequently end up paying on net less than he or she would have for a straight property division while the lower earning spouse will frequently end up receiving on net more than he or she would have for a straight property division because the higher earning spouse's additional tax savings from the spousal support will be greater than the lower earning spouse's additional tax liability due to the varied tax brackets.

Moreover, the old tax laws made spousal support much easier to settle on its own. Higher support amounts were always more palatable to a payor when he or she knew that they would be deducting that money from their taxes. A payee may now not have to set aside funds for estimated taxes, but the lower spousal support amounts likely to result will often mean the payee will have to choose between accepting less money than he or she needs, or fighting it out in court.

Impact on Child Support

At first blush, a change to the tax treatment of spousal support does not seem like it should impact child support at all. However, if you know how child support is determined, you quickly realize this isn't the case. As you probably already know, in most cases child support is determined by a set of state-sanctioned guidelines. One of the inputs for the guidelines is the income of each parent. However, of relevance to us, the guidelines also consider spousal support - spousal support being deducted from the guidelines income of the payor, and added to the guidelines income of the payee.

There is a problem with this going forward, however. The child support guidelines are based on gross income. That is, income before taxes. In a world where spousal support is deductible to the payor and taxable to the payee, the guidelines' treatment of spousal support makes perfect sense - spousal support in that world really is a change to the parties' gross income, so it should be treated accordingly.

In the new world, spousal support is instead a change to the parties' net income. If it continues to be treated the same way by the child support guidelines, this will be unfair to the spousal support payor because the gross income impact of his or her spousal support payment is now a larger decrease than the support payment itself, but only the net income impact would be getting deducted from his or her income (and similarly, the payee gets a bit of a windfall, since the gross income impact of his or her spousal support payment is now a larger increase than the amount of support itself, but only the net amount is being added to their income). If spousal support is removed from the child support guidelines altogether, this would be even more of a windfall to payees, unless the formula used in the guidelines were changed, which would then unfairly impact the families where there is no spousal support involved.

The most logical way to handle this, then, would seem to be for spousal support to continue to be handled the same way, except have it increased by a certain percentage when plugged into the guidelines. Setting that percentage would be challenging, however. The General Assembly seems to recognize this, and is currently considering HB 1331 which, if passed, will require the state's Child Support Guidelines Review Panel to conduct a review of the guidelines outside their usual every four year window. The purpose of the review would be to propose any changes necessary to bring the guidelines into compliance with federal law, which mandates that the guidelines determine child support "appropriately." However, the report on this review would not be due until November 1st, and any resulting legislation would likely not come into force until well into 2019.

What this all means is that, unfortunately, for some time going forward, more child support cases are going to likely have to get into deviations from the guidelines (deviations based on "tax consequences" are allowed by the Code), which, like in the previous section, likely means more costly litigation, and less settling.

Impact on Total Finances

Imagine a spouse who earns enough money to be in the 28% tax bracket and one who is in the 10% bracket. The higher earning spouse pays $24,000 a year to the lower earning spouse in spousal support. Under the old law, the higher earning spouse would save $6,720 in taxes because of spousal support, while the lower earning spouse would owe $2,400 in taxes because of spousal support. This means that there was effectively an extra $4,320 available to the family unit because of tax law.

Under the new tax law, that $4,320 is gone. The higher earner gets no savings from taxes. In order to effectively pay the same amount, the spousal support would have to be reduced to $17,280 a year. However, in order for the lower earner to effectively receive the same amount, spousal support would have to be $21,600 a year. I've already discussed how this disparity is going to make cases harder to settle, but even after they do settle or resolve in court you've still got a problem - no matter what, under the new law, one or both former spouses will end up with less money than they would have under the old law. When considering that divorcing families are already frequently in financial distress, this backdoor tax increase will create a real hardship for many divorcing families.

Why 2018 May be the Year to Get Divorced

All of this comes together to reach my ultimate point. We know this change in law is coming, but there is a way to avoid the difficulties settling, the complicated child support calculations, and the loss of combined financial resources - get divorced in 2018. Because of the grandfathering of the law, if you get divorced this year, you can still take advantage of the old law's tax benefits, before they disappear.

As I state in the intro, I never want to rush anyone into divorce. But the reality is that if your goal is to keep as much money as possible within the family, avoid unnecessary litigation costs, and keep things simple - you're far better off divorcing in 2018 than in 2019.

Conclusion

The new tax law is set to make a major impact on divorces across the country. No change is likely to have a greater impact on family law than the change in the tax treatment of spousal support. Among other potential impacts, it will make settling cases harder, child support more complicated, and reduce the total amount of money available to divorcing family units. Overall, it makes 2018 a financially superior year to get divorced than 2019 and beyond. If you are thinking about a divorce, and the tax law has you ready to make your decision, feel free to read our initial consult policy, then call (703)281-0134 or shoot me an e-mail at SLeven@thebaldwinlawfirm.com to set up an initial consultation. Our initial consultations are free for up to half an hour.

Classic Law is Your Friend: Support Payments During a Government Shutdown

noreply@blogger.com (Samuel Leven) — Fri, 19 Jan 2018 21:07:00 +0000

In light of today's events going on in Congress, I thought it would be a good time for me to whip out this oldie but goodie I published during the last major government shutdown in 2013. It is targeted towards my readers who are federal employees or contractors who will not get paid during a shut down, or who are involved in a family law case with such a person. This post addresses what will happen to your spousal or child support payments (be it as an obligor or obligee) and some options to alleviate the pain from support if you are a support payor who suddenly does not know when your next paycheck will be coming.

"As always, please review my disclaimer before reading this post by following the link above or by clicking on this link. As always, all legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

As an attorney who practices in Northern Virginia, it's fairly unsurprising that many of my clients, opponents, potential clients, etc. are federal employees. Federal employees face an unusual array of challenges when it comes to family law to begin with. Consider, for example, an undercover intelligence official, who cannot submit his true paystubs to court, cannot explain to the court why he cannot submit his true paystubs, and cannot even tell his lawyer why he cannot submit his true paystubs. Well, now federal employees are facing a whole different issue - what to do with those spousal and child support payments they might have coming due when they aren't getting paid, either because they are furloughed (meaning they cannot get a new job in the meantime, but have no guarantee of ever getting paid for their time off), or because they are working without pay (although they at least know they will get paid eventually).

The fact of the matter is, child and spousal support are a continuing obligation, and a temporary halt in your pay does not relieve you from your obligation to pay. There are options available to you, however, and I hope to cover those in this blog post.

Option 1 - Agreement

Perhaps the simplest way to solve this problem would be an agreement with the other party. If you are on good terms with your ex, this may be a viable option. You should contact your ex immediately to discuss the issue. A reasonable solution might be to suspend payments while you are going unpaid, with an agreement that if you do not get back pay, those payments will be wiped out, but if you do get back pay, you will then pay the amounts you didn't pay while your payment was suspended.

Please note, however, that if DCSE is involved in your case, this method will not be possible, as DCSE cannot agree to short-term changes without court involvement.

Option 2 - Court Order

A court ordering support is required by law to consider only your "current" situation. If you are currently being unpaid, and it is not your fault, then a court has to consider your income at $0, and re-do your support accordingly. Unfortunately, that's where the simplicity of this solution ends. Consider, for example, that from filing until trial, it could easily be many months, even close to a year, and the shutdown will almost assuredly be over by the time your case is heard. An alternative option would be to file for a modification, knowing it won't be granted, but then to file a motion for pendente lite relief to get your support reduced near immediately (a motion for pendente lite relief can usually be heard within a week or two of being filed, and sets your support pending the final hearing). Once the shutdown ends, you can then withdraw your motion.

This is a complicated process, however, and the odds that you will make a mistake without representation are high. If you do hire an attorney, you are likely to end up spending more on attorneys' fees than you save in support.

Option 3 - Suck it up and Pay

If the prior two options are not available to you, then you may just need to scrape the money together and pay, recognizing that it unlikely that the shutdown will last beyond one monthly payment (although given the current acrimony in Washington, that's certainly not a guarantee). There's not really much more to say about this option, for the majority of people for whom option 1 is not available, my guess is this option will be your best bet.

Option 4 - Unilateral Non-payment

This is the most dangerous option. If options one and two aren't available to you, and option three is actually impossible for you, then you may have to just not pay. Maybe DCSE and/or your ex won't take any action, but there is a chance they will. If they do, you will definitely be found to have an arrearage for the unpaid amount (which will accumulate interest), and there's a good chance you'll also be ordered to pay attorneys' fees. You will also risk going to jail, although jail time on a first violation is unusual and it cannot be ordered if you are able to prove that you actually could not pay through no fault of your own. There could be some negative long-term consequences to taking this option, but if it's your only choice, then it's your only choice.

Conclusion

The government shutdown presents a unique challenge to federal employees who owe support. The presumed temporary nature of the shutdown narrows the options available, and just about every option has some undesirable component to it. Nonetheless, there are options, and you should know them before you take action. If you are a federal employee who is going unpaid through this shutdown and you would like to review what options are best for you, or if you are being paid support by a federal employee and want to know what actions to take to protect yourself, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation. Your initial consultation is free for up to half an hour!"

When Finding a Lawyer Be Careful What You Wish For

noreply@blogger.com (Samuel Leven) — Fri, 28 Jul 2017 19:01:00 +0000

As always, before reading my post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

I know it has been some time since my last blog post, and as noted last October, you can expect my posts to be irregular and infrequent now, although I do strive to at least try to keep past blog posts up to date, and they are not going anywhere. Today's blog post will be a little different than my standard format, in that instead of going into a broad principle, I am going to tell a story, and then bring about the point of it. Nonetheless, I think this is something you should read if you are considering hiring an attorney for your legal needs. Please note that some specific facts about the story I'm about to tell have been altered so as to shield the identities of those involved.

I have strived, I'm sure not always with success, throughout my career to provide an honest voice when a potential client comes to me about a case. I try not to sugar-coat things, I try not to make promises I don't know for sure that I can keep, and I try to make sure the potential client has an honest and realistic assessment of his or her case. I run through best case scenarios, sure, but I also run through worst case scenarios, and discuss what I consider to be the likelihood of each outcome. I'm painfully well aware that this approach to potential clients has cost me clients over the years - after all, I am routinely telling potential clients something other than what they want to hear. My favorite example of this is when potential clients come to me wanting to file an appeal to the Court of Appeals. The first thing I will tell them, before I even hear a word of the details of their case, is "remember that by my estimate, 85% of appeals fail, so the odds are yours will too." Nonetheless, I do believe I would rather have fewer clients, but ones who know what to expect, than more clients ready to be disappointed when I cannot deliver what they want.

The value of this approach came to the fore today, and what I saw bothered me so much that I felt compelled to write about it. Normally this is something I might opine about for my friends on Facebook, but as I thought about it, I realized it more naturally belonged here, so here it is.

I had a consultation with a young woman whose husband had abandoned her a year or two earlier. She desperately wanted to move on with her life, and came to me about getting a divorce. I discussed the process with her, what I expected would happen, and the fact that her particular case had some procedural challenges. She told me she thought my price was right, and that she wanted to hire me as I had come highly recommended to her by someone she trusts. However, she asked if I could promise her that her divorce would be complete within a month. Two months at most. For various reasons, she felt she absolutely needed her divorce to be done within two months.

I told her that I could not make that promise. That procedural anomalies with her case meant that it would require a minimum of three and a half months to complete, but that four or five months was more likely. I told her I'd move as fast as I could, but I simply could not promise anything faster than five months, and even that assumed no bumps coming up along the way. She thanked me, left my office and I never heard from her again.

Today, while I was at a routine filing trip to the courthouse, I happened upon her case file. Turns out her divorce was finalized this week. Her consultation with me was in June of 2015. This struck me so much - that she had come to me desperate for a promise to be divorced within two months, yet here she was finally getting her divorce more than two years later - that I just had to investigate. And what I found wasn't pretty.

Her divorce was finalized by her fourth attorney. Her first three had all begun the process for her, then attempted to take various shortcuts around the procedural issues I had discussed with her at our consultation. It was clear from reading the files that they had been trying to meet her timeline, and in the process, all three attempts failed to complete the divorce and greatly delayed the entire process. Finally, the fourth attorney did exactly what I would have done, and sure enough, from beginning to end, it took him just over four months to complete the process.

I would note, the fourth attorney's actions did not surprise me. This is an attorney I know well, and who is on my short list of family law attorneys in Northern Virginia that I myself will refer people to if, for whatever reason, my firm cannot represent them. This should tell you how highly I think of this particular attorney (after all, referring potential clients is probably the highest praise one attorney can give another within our profession). So, in that attorney's case, I was not surprised that attorney had done it the right way. But sadly, I also wasn't all that surprised to see that three other attorneys were willing to make promises they could not keep just to get the client.

In the end, this woman spent over two years waiting to get a divorce she could have gotten in 4-5 months, and probably spent about 3-4 times the legal fees in the process. And while her request, demand really, was unreasonable, as someone who is not an attorney, she had no way to really know that. Add in to this that she has other attorneys willing to make these outlandish promises, and it's no real surprise that it took her so long to realize that what I was saying was right. As attorneys, it should be our responsibility to make sure clients understand the process well enough to know what can or cannot be done.

So, the cautionary tale in all of this is simple. If you have an attorney telling you nothing but things you want to hear, you should be ready to push back with questions. If different attorneys are telling you different things, don't be afraid to tell them, directly, what was said by the other attorney. Listen to their response. If this woman had reached back out to me, told me what her attorney was planning to do in order to meet her timeline, and asked for my thoughts, I could have explained to her in under 5 minutes why it wasn't going to work. I never got that chance.

So, if you are looking for an attorney, please be careful. If you're speaking to an attorney ready to promise that everything you want will be yours, perhaps it is time to speak to someone else.

Relevant Changes in Virginia Law - 2017 Edition

noreply@blogger.com (Samuel Leven) — Mon, 17 Apr 2017 18:20:00 +0000

As always, before reading this post, please review my disclaimer by following the link at the top of this page or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Now that I've stepped away from this blog in terms of my posting frequency, it will be a continuing challenge to keep it up to date. As a result, at a minimum, I intend to continue my annual post-General Assembly session blog post of laws that are changing directly relating to this blog. As I did in 2014, 2015, and 2016, today's blog post will talk about some changes to the law that are happening this year that directly affect topics posted on this blog.

All changes listed in this post take effect July 1, 2017.

VRLTA to Apply to Most Leases

One of the most important distinctions I've discussed on this blog may be on its way out - HB 2033 will be making nearly all residential leases in Virginia subject to the Virginia Residential Landlord and Tenant Act, limiting the applicability of Title 55, Chapter 13 of the Code to rentals from landlords who own two or fewer rental properties and whose leases specifically exempt the rental from the VRLTA. All other residential leases will now fall under the VRLTA. Moreover, Title 55, Chapter 13 itself has been heavily amended to include most of the provisions of the VRLTA. While some important distinctions will remain (Title 55, Chapter 13 still won't have the VRLTA's non-waiver clause, for example), the first question I always ask landlord/tenant clients - which law does your lease fall under - may be on its way out the door.

"Parenting Time"

Over the years, a large number of parents have come to object to the term "visitation." They feel, I believe reasonably, that it is a term that belittles the non-custodial parent's time with a child to a mere visit, not time as an actual parent. To that end, HB 1456 will now allow courts, if the judge so chooses, to refer to visitation as "parenting time" in its court orders. This seems a very small step in the direction of recognizing the important role non-custodial parents still play in their children's lives, but could be an important step nonetheless.

Tenancy in Case of Foreclosure

In the height of the 2008-2009 financial crisis, a problem arose across the country where landlords were having their properties foreclosed on, and tenants were being evicted through no fault of their own (at the time, a foreclosure automatically terminated any lease). To that end, Congress passed the Protecting Tenants at Foreclosure Act which mandated new notice procedures and protections for tenants in that situation. However, the Act expired at the end of 2014. Nonetheless, the Virginia law complying with the Act stayed on the books after the Act's expiration, creating a good bit of confusion. Now, HB 1623 has resolved this problem by repealing Virginia's statute complying with the Act, but instead of going back to how things had been before, introduces a new concept that a lease on a property that is foreclosed automatically converts into a month-to-month tenancy (meaning either party can terminate, but is required to give at least thirty days' notice to the other, and without notice the rental simply continues on that basis).

Child Support in ABLE Accounts

In 2014, Congress passed the Achieving a Better Life Experience (ABLE) Act, which allows parents or other individuals to set up a savings account that the individual owns, but is tax-deferred when used to pay for a disabled person's "qualifying disability costs" (such as medical expenses, equipment, etc.). This works much like a 529 plan (in fact, it is Section 529A of the tax code), except for disability expenses instead of college expenses. Moreover, the money saved in an ABLE account does not generally count towards a disabled person's asset limits on various government benefit programs, so it is a very advantageous account to have.

This year, the General Assembly passed HB 1492, which added a provision to Virginia's child support laws allowing the courts to order, on the request of either party (so the payor can request that this be done just as much as the payee can), to order child support be paid directly into an ABLE Account for the child's benefit. As a result, parents who have a disabled child can now help ensure that child's future by using child support payments to contribute to an ABLE plan, and they can be confident the other parent won't find a way to mis-use the money.

Conclusion

All in all, the landlord-tenant change was this year's blockbuster in terms of impact on the topics covered by this blog, but these laws and many others are part of what makes the practice of law so fun. If you have questions about how the new laws affect you, or if you need representation, please review my initial consultation policy, then feel free to call 703-281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!

An Introduction to Family Law Appeals in Virginia

noreply@blogger.com (Samuel Leven) — Thu, 30 Mar 2017 16:18:00 +0000

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Yes, I know this is my first substantive post in a long time. See my blog status update from October for an explanation.

Introduction

I've always said that one of the best and worst features of the practice of law is that our cases are decided by judges who are, ultimately, human. This is usually a good thing, because the reality is a great deal of law, especially family law, simply doesn't work as a rote, robotic formula, and needs a human touch to figure out how best to handle the relationships involved. Nonetheless, the downside of human judges deciding cases is that they can get it wrong, and that's where appeals come in.

In 2014, I wrote a blog post discussing the basics of how appeals work in Virginia. You can view that post here. Today, I'd like to touch on a specific type of appeal - appeals in family law cases. Now, as I noted in my previous post, there are several directions an appeal can go, and in family law cases this can include both an appeal from the J&DR Court to the Circuit Court, and an appeal from the Circuit Court to the Court of Appeals. Because appeals to the Circuit Court result in a new trial, and don't particularly deviate from the "normal" rules, I don't feel a post is really necessary on that topic, so instead today's post will discuss appeals of family law cases from the Circuit Court to Virginia's Court of Appeals.

Rules for an Appeal

Most all of the rules for an appeal to the Court of Appeals can be found in Part 5A of the Rules of the Supreme Court of Virginia. If you are involved in appeal to the Court of Appeals, even if you have an attorney (but especially if you don't), you would do well to familiarize yourself with all of the rules in Part 5A (as of March 30, 2017, Part 5A starts on page 455 of the referenced link to the Rules of the Supreme Court of Virginia).

Getting the Appeal Started

So, you've had your trial in the Circuit Court, you lost, and you want to appeal. The hardest part of any appeal can often be getting it started. As noted in my 2014 post, appeals in family law cases are heard by the Virginia Court of Appeals, and they are appeals "of right," meaning the merits of your appeal will be considered by the Court of Appeals, and you do not have to petition for permission to appeal.

So, the first things to remember is "thirty days." You have thirty days from the entry of the final judgment or order in your case in which to file what's called a Notice of Appeal. If you file after the judge rules but before the order is actually entered, your notice is considered to be filed on the date the judgment was entered, but if you file your Notice of Appeal on the 31st day after entry of the final judgment or order, then you're late. This is bad because the thirty day deadline is what the court calls "jurisdictional" or "mandatory." In other words, if you file your Notice of Appeal even one day late, your appeal is dismissed.

So, what is the Notice of Appeal and where is it filed? Two good questions. The Notice of Appeal is a document that lays out all the details of the background of the case - what the Court of Appeals will need to know to open your file. So, it has the names of the parties, the trial court case number, the names and addresses of the attorneys, etc.. It also has other information that will be important for the courts and the other parties to know, such as if you're ordering transcripts or planning to prepare a written statement (more on this in the next section). The rules for a Notice of Appeal are laid out in Rule 5A:6 and a sample Notice of Appeal is found immediately following Rule 5A:6 in the Rules of the Supreme Court of Virginia.

Now, once you've completed your Notice of Appeal, you actually file it with the trial court, that's what triggers the beginning of the appeal process. Nonetheless, you also send a copy (so, not the original) of the Notice of Appeal, along with your filing fee, to the Court of Appeals. Which gets to my next point: fees. When you file an appeal, you should be prepared to write three checks. The first will be the filing fee for the Court of Appeals (currently $50), made out to the clerk of the Court of Appeals. The next two should be your appeal filing fee with the Circuit Court (you should call the Circuit Court to find out how much their appeal filing fee is) and a check for your "cost bond" (currently $500), which is required in order to "perfect" your appeal, and must be paid at the same time as the Notice of Appeal is filed in all appeals of right. The first check is sent to the Court of Appeals with its copy of your Notice of Appeal and the latter two checks should be made out to the clerk of the circuit court your case is in and filed with the circuit court at the same time that you file your Notice of Appeal.

So, once you've filed your Notice, mailed a copy to the Court of Appeals, and paid your filing fees and appeal bond, your appeal begins.

Completing the Record

Your next task is to "complete the record" in the trial court. This means that for every hearing in which something important occurred that you want the Court of Appeals to consider, you must submit a transcript or written statement. Generally speaking, if you had a court reporter at the hearing, you need to submit a transcript from that court reporter for the hearing, and if you didn't, you need to prepare a written statement. I've seen some cases where there was no court reporter but there was an audio recording and a transcription of the audio recording was allowed as a transcript, but that's not usually ideal.

Rule 5A:8 governs transcripts and written statements. For each hearing in which you will have a transcript, you must file with the trial court that transcript within 60 days after entry of the final judgment or order, and within 10 days after filing that transcript you must send a notice to the other party that you've filed the transcript. For each hearing in which you won't have a transcript, you must prepare a written statement that summarizes what happened at the hearing, including the arguments that were made, testimony given, and rulings made by the court. It is particularly important that all things that happened that you want the Court of Appeals to know about or that might be relevant to your appeal be included in the written statement. You must file with the trial court each written statement within 55 days after entry of the final judgment or order, and send copies of your written statement(s) to the other side (note there is no requirement to send the other side a copy of the transcript(s) you file, just the notice that the transcript(s) had been filed, so this is a difference between the written statement(s) and transcript(s)).

Once this is done, the other side will have 15 days from the date of the written statement or the date of the notice of the filing of the transcript to object to the transcript(s) or written statement(s) on the basis of being erroneous or incomplete. Within 10 days after that, the circuit court judge will rule on the objections (the judge may order oral arguments to be held, but is not required to) by overruling the objections, making corrections, and/or certifying the manner in which the record is incomplete. Once the judge does this, he or she will certify all transcript(s) and written statement(s), and they become part of the trial court record.

Remember that if you fail to file any transcripts or written statements, or have a hearing for which you fail to do so, the Court of Appeals will not consider anything that occurred during those hearings, and if the Court of Appeals finds that the record is not sufficient on which to make a decision, then it may well dismiss your appeal outright, so it is critical that you include the transcripts and/or written statements.

Once this part is done, the trial court record is complete, and shortly thereafter the Circuit Court clerk will (or should, anyways) transmit the record to the Court of Appeals.

Assignments of Error and Contents of the Appendix

Once the record is transmitted to the Court of Appeals, unless and until there is an order otherwise, everything else occurs in the Court of Appeals and you are done with the Circuit Court. In fact, in family law this is important, because while your case is pending on appeal, the Circuit Court lacks jurisdiction to modify its order, it can only enforce it. So, if you're appealing a child support order, for example, and then the other side has a big promotion while your appeal is pending, you actually cannot bring a motion to modify child support until the appeal is over - this is something to keep in mind when considering whether or not to file appeals (and we have on several occasions advised clients not to appeal where we had good reason to believe a change in circumstances warranting modification would occur before any appeal could be completed anyways).

Now, once the record is received by the Court of Appeals, the clerk of that Court notifies both sides, and two clocks start ticking, one at 15 days, and one at 40 days. I will get to the 40 day deadline in the next section.

Within 15 days of the Court of Appeals receiving the record, you must file (again, in the Court of Appeals now) and send to the other side your designations of the contents of the appendix and your assignments of error. Both of these are critical to your appeal. Your assignments of error are a numbered list of things you think the trial court did or got wrong, and these are the basic underpinnings of your appeal. Failure to include an error in your initial list of assignments of error means the Court of Appeals will not consider that error when deciding your appeal. So, you must in your assignments of error mention all mistakes you believe the trial court made in order to preserve your ability to appeal those mistakes.

Your designation of the contents of the appendix is almost as important. The "appendix" is a set of documents you will file with the court (discussed in the next section) that consists of elements of the trial court record that the Court of Appeals will need to consider to consider your appeal. This is a concept developed from the idea that it is unlikely that the entire trial court record is relevant to your appeal, so the appendix narrows down the parts of the record that are actually relevant. Your designation is simply a list of the items from the record you intend to include in your appendix.

Your designation and assignments of error, which are filed as a single document, as noted are due 15 days after the record is received by the Court of Appeals - as always, of course, you must also send a copy to the other side. The other side will then have 10 days to file and send you an additional designation of contents for the appendix. This is important, because while you may put things in the appendix that neither party designated, you must put in the appendix everything either party designated.

An additional point to consider is this - your brief and appendix due date is 40 days after the Court of Appeals receives the trial court record, but the other side's designation due date is 10 days after they receive your designation. If you wait the full 15 days to file your designation, you won't have the other side's due until 25 days after the record was received, leaving you just 15 days to actually complete the appendix. If you file and serve your designation on day 2, however, then you'll have their designation by day 12, and have 28 days. As a result, I always try to file my designation and assignments of error as soon as possible, usually even preparing it before the Court of Appeals has actually gotten the record so that it is ready to file and send as soon as the record arrives at the Court of Appeals.

Brief and Appendix

As noted above, your opening brief and the appendix are both due 40 days after the record is received by the Court of Appeals. There are many rules for a brief and summarizing them here would be an exercise in futility. Just note that you're required to have a white cover page, a table of contents, table of authorities, summary of facts, summary of the case, restate your assignments of error, your arguments, and a certification. You are limited to 12,300 words. Rules 5A:4, 5A:19, and 5A:20 are the ones to make yourself very familiar with.

While there are many key rules a few to remember are the 12,300 word limit, that you must cite to the record (preferably to the appendix) in your statement of facts, your assignments of error must now cite to where in the record (preferably in the appendix) that error was "preserved" for appeal, and your arguments must cite legal principles and cases, statutes or other authorities to be considered. You must also follow the rules in Rule 5A:4(b) about binding and the cover page, 5A:19(f) about electronic filing and serving of copies, 5A:20(h) about the certificate and 5A:24(a) about color of the cover page.

Your brief is the crux of your appeal. This is not the place to hold back - if you don't make an argument in your brief, you lose your right to make that argument on appeal at all. You should lay it all out on the table and make your case in full in your written brief.

As noted, the Appendix is also due 40 days after the receipt of the record by the Court of Appeals, however it has an additional deadline - it cannot be filed later than your brief. So, if you file your brief on day 35 after the record is received, then the Appendix also must be filed on or before day 35. That being said, this should be easy because you want to complete your Appendix first so you can cite to it in your brief.

The rules governing the Appendix are found at Rule 5A:25. As noted, all documents designated by each party must be included. Also included should be the pleadings initiating the portion of the case you're appealing, the order(s) you're appealing, the relevant portions of the transcript(s) or written statement(s), and any additional documents from the trial court record you believe the Court of Appeals should consider. Note that the Court of Appeals generally won't look at anything in the record that's not in the appendix, so if you think it might be relevant, put it in. You'll need a table of contents, the contents are to be in chronological order of the date they were filed with the court, and you'll need to follow Rule 5A:4(b) and 5A:24(a) regarding the cover pages (which are red) and binding, and 5A:25(b) regarding electronic and physical filing and serving.

Once you've filed your brief and appendix, you can largely sit back and relax - the hardest part is over.

Reply Brief

Once you've filed your brief, the other side has 25 days to file and serve you their brief. As with their designation, this deadline is based on when you filed, not when the record was received, so if you want the appeal to move faster, you can file your brief earlier than day 40, and their deadline will move up accordingly.

Once you receive their brief, it's up to you what to do next. Rule 5A:22 allows you, but does not require you, to file a reply brief. Your reply brief is governed by Rule 5A:4(b) regarding cover and binding, Rule 5A:24(a) regarding cover color (green), Rule 5A:19(f) regarding electronic filing and service (note that Rule 5A:19(a) also limits your reply brief to 3,500 words and 5A:19(b) requires it to be filed within 14 days of the filing of the other side's brief), and Rule 5A:22. As noted, you are not required to file a reply brief, and if you do, you do not need to reply to everything in the other side's brief. A reply brief is largely just for if you believe there are important points you want the Court of Appeals to consider in response to the other side's arguments which are not presented in your original brief.

Oral Argument

Once the briefs are all done, the case is given to a panel of three judges on the Court of Appeals. If, after reviewing both sides' briefs and the appendix, all three judges agree that there is no merit to your appeal, then your appeal will be summarily disposed of. If, however, any of them think there is at least the potential for merit, the case will be scheduled for oral argument (unless both sides waived the right to have oral argument).

At oral argument, each side gets 15 minutes - appellant goes first, then appellee, then appellant can do a rebuttal with however much of his or her 15 minutes were not used - to present their case. The judges will routinely interrupt with questions, and having a command of both the facts of the case and the legal principles you are arguing is a must. You will not have witnesses nor be presenting evidence, the Court of Appeals is only considering the arguments in the briefs, and the record of what happened in the trial court. I find oral arguments fun, but a lot of people find them to be daunting and intimidating. Virginia has a great tradition, though, that when oral arguments are over, the three judges get off the bench and go greet and shake hands with both arguers - it's a nice touch of collegiality after what can be a testy 30 minutes.

Ruling and Mandate

Some time after oral argument, the Court of Appeals will generally issue its opinion, which lays out its ruling. The opinion may be published (in which case it gets printed in the official court opinions and sets binding precedent on future trial courts and Court of Appeals panels) or unpublished (in which case it just binds the trial court and Court of Appeals as to your case specifically). Then, not long after the ruling is issued, the "mandate" of the court issues, which is what actually lays out the court's order and then returns jurisdiction over the case to the trial court. In the meantime, motions for rehearing can be filed, or petitions for appeal to the Supreme Court can be filed as well.

As noted above, the circuit court loses jurisdiction while the appeal is pending. It is not the opinion/ruling, but rather the mandate coming from the Court of Appeals that finally returns jurisdiction to the circuit court.

Conclusion

As you can see, family law appeals are complicated, and the litany of rules to follow can be daunting. A typical family law appeal to the Court of Appeals takes upwards of a year or longer, and I cannot recommend strongly enough having an attorney familiar with appellate rules and procedures to represent you through the appellate process as otherwise the minefield of rules could easily trip you up and cost you an otherwise meritorious appeal. If you have a family law case you'd like to appeal to the Court of Appeals (or are defending against an appeal brought by an opposing party), please feel free to contact me by phone at (703)281-0134 or by e-mail at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to thirty minutes, and perhaps most relevantly, I am not geographically restricted within Virginia in terms of cases I can do for a family law appeal to the Court of Appeals (since such appeals rarely require appearances in the trial court). So, if you're considering whether or not to have a consultation with me on such an appeal, you can disregard the geographical portion of my initial consultation policy (so long as your case is in Virginia and appealing a decision of a Virginia circuit court).

A Chance to Change Virginia Law on Adultery

noreply@blogger.com (Samuel Leven) — Mon, 16 Jan 2017 17:56:00 +0000

As always, before reading this post, please review my disclaimer by clicking on the link above or clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia. Please also be aware that any opinions expressed in this blog post are solely that of the author.

Introduction

Since announcing in October that my regular blog posts would be coming to an end, I've occasionally been inspired to write posts, but just haven't gotten myself together enough to actually do one. Today, however, I was hit by inspiration to write on a topic of sufficient importance in family law that I actually have forced myself to sit down and post.

Adultery is a touchy subject in family law, but it is routinely present. In my own experience, it's responsible, in part or in whole, for probably about a third of divorces. Its impact on a divorce case is also substantial. An adulterer generally cannot receive spousal support, can get hit in the equitable distribution of property, and a divorce can be granted on adultery grounds right away instead of having to wait for a year of separation. However, adultery is very hard to prove in Virginia because a) the burden of proof is "clear and convincing evidence" (instead of just "more likely than not"), and b) the adulterer can plead the Fifth Amendment to refuse to answer questions about it. We have a chance right now, however, to make it easier to prove by taking away the Fifth Amendment as an adultery defense, and that is a topic I wanted to write about today.

How the Fifth Works for Adultery

The Fifth Amendment's famous protection against self-incrimination is one of the most powerful tools the Bill of Rights gives us against government. It plays a key role in preventing coercion, torture, and other means by which the state used to force confessions out of people. The way it works in a civil context is that in any civil case (such as divorce), if answering a question could result in you incriminating yourself, you simply refuse to answer on the grounds of the Fifth Amendment.

In Virginia, for adultery, this is crucial for two reasons. First, adultery is actually illegal in Virginia. Virginia Code Section 18.2-365 makes adultery a Class 4 misdemeanor. For reference, a class 4 misdemeanor means that the maximum punishment for conviction is a fine of up to $250. While it has been eight years since Virginia's last prosecution for adultery, and there have only been three prosecutions in the entire 21st century to date, this crime remains on the books, and as a result the Fifth Amendment is available as an option for those accused of adultery.

Now, in most states, this actually wouldn't be a huge problem. This is because unlike in criminal cases, in civil cases, while you still cannot be prosecuted for pleading the Fifth, the fact that you pled the Fifth can be used as an implied confessions and subsequently be used against you within the civil case itself. Virginia, however, prides itself (I think rightfully so) on the degree to which it supports constitutional governance. As a result, Code Section 8.01-223.1 forbids Virginia trial courts from using a person's invocation of a constitutional right (including the Fifth Amendment) against them even in a civil case.

What this means in a family law context is that adultery, while the lowest level of misdemeanor we have, and while rarely enforced, is still technically a crime, and subsequently the Fifth Amendment can be used as a shield and a sword by an adulterer in a divorce case to get that person rights and protections he or she should not have.

The Proposal to Change This

Now, looking at all of this, I would hope you agree that we should not weaken the impact of the Fifth Amendment in Virginia. So, while it's fairly unique amongst the states, I fully support keeping Code Section 8.01-223.1 in place. The obvious "solution," then, would seem to be, at least in this day and age, taking the crime of adultery off the books. This solution isn't as simple as it seems, though.

Take, for example, employment law. Virginia is an "at will" employment state - meaning that unless you have a contract specifically stating otherwise, you can be fired at any time for any reason (you can also quit at any time for any reason). As a result, it is very hard to sue for wrongful termination in Virginia. However, there are exceptions - and one of the biggest exceptions is that your termination "violated public policy." In general, however, to violate public policy, the termination has to involve a violation or potential violation of the laws of the Commonwealth.

The adultery statute, then, has been one of the strongest swords in bringing wrongful termination suits by employees fired after refusing sexual advances from a superior. If either the employee or the superior was married, then any sexual relationship would have been adultery, and subsequently the public policy exception is triggered. There's been extensive argument that removing adultery from the books would make these cases harder. Similarly, in some sexual assault cases, the availability of an adultery charge has helped ensure a case is not prematurely dismissed while additional evidence is collected. In short, taking adultery off the books would have some potentially damaging unforeseen consequences.

Instead, State Senator Scott Surovell has proposed SB 1124, which would change adultery from a criminal to a civil offense, with the maximum penalty being $250 which would be paid to the state literary fund.

A civil offense, unlike a criminal offense, does not go on your criminal record, does not have to be proven beyond a reasonable doubt, can be subject to bankruptcy proceedings, and failing to pay often is not contempt of court (unlike criminal fines). Of relevance to us, however, is that civil offenses are not afforded the protection of the Fifth Amendment.

Potential Impact of Change

The potential impact of SB 1124, then, is huge. While still protecting employees and preventing the other "bad effects" of taking adultery off the books completely, changing it to a civil offense would mean that adulterers in a family law case would have to choose between confessing and committing perjury (a felony). This will also make it easier to potentially question the paramours of an adulterous spouse. As a result, SB 1124 would, in my opinion, keep all the benefits of having adultery on the book as a crime, while getting rid of the drawbacks.

How You Can Help

So, this might seem like a no-brainer. But, unfortunately, it isn't. This is not the first time Senator Surovell has proposed this bill. Last year, our socially conservative General Assembly refused to pass the bill even out of committee because they feared the message it would send by saying we don't take adultery seriously in Virginia. As ridiculous as this may seem, the fact is most members of the General Assembly are not lawyers, and have no idea how badly the current law actually hurts the victims of adultery.

That's where you come in. Please consider contacting your State Senator and Delegate (especially if they are a Republican, but even if they aren't) and talk to them about this bill. Tell them how important it is to you to see the adultery loophole closed so that victims of adultery can get the justice that the law entitles them to.

Update on Blog Status

noreply@blogger.com (Samuel Leven) — Fri, 21 Oct 2016 16:58:00 +0000

I sit here today having made my last post four weeks ago and only made a total of one post in the past eight weeks. Many things have come together to lead to this general decline in posting, but perhaps the biggest issues have been that as I spend more time in the practice of law, I get more clients, and have less time to dedicate to a blog. Combined with my growing family and a number of other time consuming issues that have arisen, it is becoming increasingly clear to me that my days of routinely posting blog updates are at an end.

When I started this blog in 2013, I had no idea of the readership I would gain or how rewarding this experience would be. As time wore on, however, my frequency of posting dropped, such that in May of last year I had to step back to posting every other week (see my update from then here). While I do feel like I have plenty more to say, I just don't have the time or energy to put together the quality of posts I can be satisfied with. In fact, I believe the quality of my posts has declined over the past year already, as I have already covered many of the broader issues I encounter day to day, and have instead gotten more and more specific with my blog posts. Specifics can be good, but they don't appeal to the wider audience I'm generally speaking to. I think there's a reason that to this day my most widely read posts are from 2014 and 2015 - in 2013 I was still getting this thing off the ground and learning what I was doing, and this year I struggled for much of the year finding topics I hadn't already covered with broad applications.

What this doesn't mean, however, is that I'm going anywhere. I'll still be happy to respond to inquiries and comments on this blog and I'll still be happy to schedule consults with blog readers. Moreover, any time the writing bug strikes me, I will do more posts - just not on any regular schedule. At a minimum, when new laws are passed that affect the accuracy of prior posts on this blog, I do hope to continue doing my annual "changes in the law" posts.

In the meantime, however, please enjoy what I've already posted. Doing this blog has been wonderfully rewarding, and I hope you, the readers, have gotten something out of it as well.

Short Topics - Virginia Law on Lease Non-Renewals, Terminating Child Support, and more

noreply@blogger.com (Samuel Leven) — Fri, 23 Sep 2016 18:20:00 +0000

Before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Quite often, I will put up a blog post that breezes over a sub-topic of sorts, noting that the true details of that issue probably warrants a post of its own. It shouldn't be surprising, though, that often times on the opposite end of the spectrum I get questions or encounter issues that I'd love to discuss on this blog, but are issues that also have relatively short answers and don't really warrant their own blog post. Over the three and a half years I've been doing this blog so far, those topics have added up, so I'm hoping to finally put together a series of posts addressing a number of those "short topics" - ideas that warrant discussion on my blog, but probably don't warrant their own dedicated post.

Today's blog post will cover settlement issues in a multi-defendant lawsuit, divorces where one spouse's location is unknown, termination of child support, and refusals to renew a lease.

What happens if you're one of several people being sued and the other side offers a settlement, but you're the only one that wants to accept it?

So, we all know that in a lawsuit, multiple people can be sued at the same time for the same thing. Just because you're all co-defendants in a lawsuit, however, doesn't mean you get along, or are united in your case strategy. If the plaintiff offers a settlement proposal and your co-defendants don't want to accept it but you do, what can you do?

Well, first understand that if the proposal is presented to all of you, then that specific proposal must be accepted by all of you to be valid. However, you could take several approaches. You could personally make a counter-offer to the plaintiff offering to pay your share of their offer in exchange for your personal removal from the case. Alternatively, you could agree to pay the entire amount of their proposal, and have the whole case dismissed. The first option is much less expensive for you, but also less likely to be accepted. The second would almost definitely be accepted, and there would be nothing your co-defendants could do to stop you.

However, without reaching your own personal agreement with the plaintiff, there is nothing you can do to force your co-defendants to accept an offer.

My husband left and I have no idea where he is - how do I get divorced?

Most people are aware that a divorce is a form of legal action and that in order to start a legal action you need to "serve" the other side with papers. The historic reason for this is that service of process is how the court gains personal jurisdiction over someone - in other words, how the court gains power over a person. However, there are two types of personal jurisdiction - in personam (power over the person), and in rem (power over a "thing" or "property").

In most legal situations, you need "in personam" jurisdiction, because that's the only jurisdiction that can allow for a court order that in some way attaches to a person - affects all of their rights and properties. A court cannot impact a person directly without having in personam jurisdiction. However, there are situations where the real issue is a specific piece of property, but not necessarily a person, that can be brought under the court's control, and so that property is all the court needs jurisdiction over. Some examples of cases involving in rem jurisdiction would be a case to determine the legal owner of a disputed piece of property or civil asset forfeiture cases (where the government seeks to seize specific property that has allegedly been used in the commission of a crime).

This is all relevant because a person's marital status itself has been determined to be a "thing" subject to in rem jurisdiction - meaning that a court can decide a person's marital status without having personal jurisdiction over both parties to the marriage. This is important because the rules for service of process for in rem jurisdiction are different. In Virginia, a court has the power to grant you a divorce even if you don't know where your spouse lives so long as you pursue service by means of an "order of publication" - an order that mails the pleadings to your spouse's last known address and publishes notice of the proceedings in a local newspaper for four weeks in a row (you can sometimes find these legal notices in the classified section of your local paper). Once you complete an order of publication, the court can grant you a divorce without your spouse's appearance.

Now, to be clear, the court can only grant you a divorce. It cannot grant you support nor can it divide your marital property (though that can be done via other procedures later, at least for property that is titled in your joint names).

My kid turned 18 and graduated high school - why am I still paying child support?

In Virginia law we have a concept known as "self-executing" and "non-self executing" provisions of support law. A self-executing provision is one where support changes or is eliminated upon the happening of some event and no further court involvement is needed. A non-self executing provision calls for changes after a certain event, but you must get a court order first. The basic distinction is this three part question - is the fact that the event has occurred relatively indisputable and unopen to interpretation, is what the resulting support should be also relatively indisputable and unopen to interpretation, and is support paid directly without the involvement of third parties? If the answer to all three parts is yes, the provision is probably self-executing, but if the answer to any part is no, then the provision is not self-executing and a new order is needed.

When it comes to terminating child support there is only one (normal - I'm not getting into bizarre exceptions here) situation in which its termination is self-executing: when the child is 18, has graduated from high school, is your only or youngest child with the other parent, and you are paying your support directly to the other parent. In virtually all other situations, child support termination is not self-executing. Let's break down the reason why.

Well, to start with, the one example given above is self-executing because your child's age, status, and sibling status should all be relatively indisputable, and if they are your youngest child with the other parent, then support should be $0. However, if you are not paying directly, that means there's been an Income Deduction Order entered by either the court or DCSE. Your employer is thus under a court-ordered obligation to pay the support, and cannot stop until he or she has received a new order saying otherwise. As a result, if all of the above conditions apply except that you are not paying directly, you need to go to the source of the Income Deduction Order (the court or DCSE) and get a termination order entered. You must also do so ASAP, as money improperly paid under the Income Deduction Order before it is terminated cannot be recouped.

The other changes from the above, simple scenario, are a bit more obvious. If it's not your youngest child, then you still owe child support, and since the Virginia guidelines are not a "per child" guideline, the new support number is not inherently obvious. Similarly, if they have just turned 18, or just graduated from high school, but not both, the support termination condition has not been met yet.

My landlord of 20 years has decided not to renew my lease - I've done nothing wrong, how can I fight this?

I get this inquiry a lot and unfortunately, the answer is usually "nothing." The simple reality is that when you rent, the property you are renting belongs to your landlord and as long as they do so in accordance with the terms of their lease, they can terminate the lease for any reason they want or no reason at all.

Now, the two big defenses to a lease non-renewal are discrimination and retaliation. Federal law bans housing discrimination on the basis of the "protected classes." In general, if you have reason to believe your lease is not being renewed due primarily to your race, color, nationality, religion, sex, marital status, status as a veteran (namely discrimination against you for being a veteran), or disability, then you should consult a civil rights or discrimination attorney. You may not be able to force the landlord to renew your lease, but you should be entitled to fairly substantial damages.

Additionally, in both VRLTA and non-VRLTA leases now, retaliatory conduct is prohibited. This means if you have evidence that your landlord is refusing to renew your lease because you brought a code compliance complaint against the landlord, filed a tenants' assertion or other lawsuit or otherwise made a complaint to your landlord to fix issues with the property, you organized or became a member of a tenants' organization, or you testified in a court proceeding against your landlord, you can prevent the landlord from terminating your lease or evicting you.

However, absent one of those two issues, your landlord has a right to refuse to renew your lease, no matter how good a tenant you have been.

Conclusion

I do hope to do more of these "short topics" posts in the future. Each of the situations above are fairly complicated, even for short topics, and as always, I strongly encourage you to retain an attorney to discuss your particular needs. If you would like to set up a consultation with me, please review my initial consult policy, and then call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. Our initial consults are free for up to half an hour!

Interstate Child Support - Virginia Law

noreply@blogger.com (Samuel Leven) — Fri, 26 Aug 2016 19:12:00 +0000

As always, before reading this post please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

In my last blog post, I discussed the issues that come up in custody and visitation cases involving parents who live in different states. It might not surprise you, then, to learn that similar issues arise frequently involving child support. Child support is in many ways, however, more complicated, because it is not enough for a court to have control over (or "jurisdiction over") the child, but rather the parents also must be under the jurisdiction of the court in a child support proceeding.

In today's post, I will discuss how issues of interstate child support are handled.

UIFSA

Like the UCCJEA in custody and visitation cases, the field of child support also has a uniform law that's been adopted by all fifty states. The Uniform Interstate Family Support Act (UIFSA) was first proposed in 1992 but was slow to be adopted by the states. Then, in 1996, Congress passed the Personal Responsibility and Work Opportunity Act (known colloquially as "welfare reform,") which put into place rules for how states can recover welfare funds it pays to needy families from non-paying, non-custodial parents. Since the law had a great deal of interplay with UIFSA, it also required all states to adopt UIFSA by the start of 1998 or else lose all federal child support enforcement funding. As a result, UIFSA has been the law in all fifty states for a bit over 18 years now.

In Virginia, UIFSA was adopted in 1994 and can be found beginning at Title 20, Chapter 5.3 in the Virginia Code.

Initial Support Order

Unlike in the UCCJEA for custody and visitation, UIFSA does not attempt to designate a single state that is appropriate to issue the "first" order. Instead, a support petition under UIFSA can be initiated in any state, so long as the court has jurisdiction over both parents. A court will always have jurisdiction over the parent that files the petition, as filing the petition is a voluntary submission to a court's jurisdiction. A court will also always have jurisdiction in support over a parent who is a resident of the same state where the court is located. If, however, the non-petitioning parent is not a resident of the state where the support petition is filed, then the court will have jurisdiction over that parent under the following circumstances:

The non-petitioning parent is personally served with process in the state where the petition was filed;
The non-petitioning parent consents to jurisdiction, either expressly or by implication or waiver;
The non-petitioning parent has ever resided with the child in the state where the petition was filed;
The non-petitioning parent has ever resided in the state where the petition was filed and paid for pre-natal expenses or supported the child while living there;
The non-petitioning parent directly caused the child to become a resident of the state where the petition was filed;
The parents had sexual intercourse in the state where the petition was filed at a time that it is reasonably likely the child was conceived in that state;
The non-petitioning parent asserted parentage of the child in the putative father registry of the state where the petition was filed;
The non-petitioning parent has signed a contract in the state where the petition was filed agreeing to pay support; or
There is another basis under the laws of the state and the constitution to allow for jurisdiction.

If jurisdiction over the non-petitioning parent is present, then any state can issue the initial support order.

Simultaneous Proceedings

Since, unlike custody and visitation cases, UIFSA does not usually give us a clear-cut "proper" first state for support orders, it is entirely possible for petitions to be filed in multiple states, and have both states be proper forums (assuming there is no already existing support order, which I'll get to in a moment).

In the case that more than one proceeding to establish an initial support order is pending at the same time, then the state that is proper to hear the case goes in the following order of priority:

If one state has jurisdiction over both parents and the other doesn't, then the one having jurisdiction gets to make the initial order.
If 1 does not apply, then if either state is the UCCJEA "home state" of the child, that state gets to make the initial order if the non-petitioning parent in the other state challenges that state's jurisdiction within the deadline to do so.
If 1 does not apply and 2 does not apply (either because neither state is the child's "home state" or because the non-petitioning parent did not challenge jurisdiction in time), then the state where a petition was filed first gets to make the initial order.

I actually did encounter a case once where both states had jurisdiction over both parents, the non-petitioning parent in the state that was not the child's "home state" failed to challenge jurisdiction in time, and the Virginia court ended up dismissing the case (despite Virginia being the child's "home state") because the Virginia petition was filed 23 minutes after the petition was filed in the other state - so this is stuck to pretty tightly.

Continuing, Exclusive Jurisdiction

As with custody and visitation, once that initial order is entered, it generally stays in that state. The state that entered the original order has what's called "continuing, exclusive jurisdiction," meaning only that state can modify the order. A state will continue to have continuing, exclusive jurisdiction for so long as either parent or the child still resides in that state unless all parties consent to the case being moved to another state. Additionally, even if no one remains in the state, it will still have continuing, exclusive jurisdiction if all parties consent to the state continuing to have it.

Conflicting Orders

Now, here's an odd thought. What if two states have jurisdiction to enter an initial order, neither non-petitioning parent ever objects to jurisdiction, and so both states end up issuing orders and having continuing, exclusive jurisdiction? Well, then it's up to the state where the modification or enforcement proceeding is being initiated to determine which order "controls." The rules on this are fairly simple. If only one state would have continuing, exclusive jurisdiction, that state's order controls. If neither state would have continuing, exclusive jurisdiction, then neither order is controlling and the state trying to sort it all out must issue its own support order. If both states have continuing, exclusive jurisdiction, then the order issued by the child's current home state controls, and if neither state is the child's current home state, then the last order entered controls.

Enforcement of Orders

As with custody and visitation, the unanimous adoption of UIFSA means that once a valid support order is entered, as long as it is the controlling order, all states will enforce it. As a practical matter, this means the state where the payor lives, since that's the one that will have the most ability to conduct effective enforcement.

Modification of Orders

A state always has the power to modify its own support orders so long as that order remains the controlling order. Of course, as long as a state has continuing, exclusive jurisdiction, it is also the only state that can modify its controlling order. If, however, the state that issued the controlling order does not have continuing, exclusive jurisdiction anymore, then modification proceedings can be held in the following states:

The state that issued the controlling order;
The state both parents reside in if they both reside in the same state (as long as the child does not reside in the state that issued the controlling order, since that state would then still have continuing, exclusive jurisdiction);
Any state the parent seeking to modify child support does not reside in so long as no parties reside in the state issuing the currently controlling order and the state where the modification petition is filed has jurisdiction over the non-petitioning parent; or
A state where the child resides or either parent is subject to jurisdiction if both parents have filed a consent in the state that has issued the current controlling order agreeing to the new state having power to modify the order.

Conflict of Laws

One of the biggest issues we face when modifying another state's support orders is that different states have vastly different laws about how child support is calculated. As a result, UIFSA takes into account that different states modifying other states' orders can create some unfairness. As a result, it lays out the following rules to determine which laws to use when modifying the support order of another state:

If a provision of the original support order cannot be changed under the laws of the state issuing that order, that provision cannot be changed in another state's modification proceedings either.
The amount of support, the frequency in which it is paid, and the manner in which it is paid is determined by the law of the state issuing the new, modified order unless any of those provisions cannot ever be changed under the laws of the state issuing the original order.
The duration of support (as in, how long it lasts) is determined by the law of the state issuing the original order.

Federal Law

Unlike in custody and visitation, there is no particular federal law you need to know here. The federal government mostly stays out of child support. The only real exceptions are the aforementioned welfare reform laws requiring states to adopt UIFSA and a federal law making it a federal crime to willfully fail to pay your child support obligations if you owe that support obligation across state lines. Neither of these laws directly affect the substance of the laws on establishment and modification of support across state lines.

Conclusion

If you feel like this all sounds even more complicated than the rules for interstate custody and visitation disputes, you're right, it is. This is why is it critical to have an attorney who knows and understands these laws if you are involved in an interstate support dispute. If you are involved in an interstate support dispute and would like legal assistance, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation (though please do read my initial consultation policy first). Our initial consultations are free for up to half an hour!

Interstate Custody Disputes in Virginia - Where does this case belong?

noreply@blogger.com (Samuel Leven) — Fri, 12 Aug 2016 17:01:00 +0000

As always, before reading my post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Imagine for a moment that you are involved a nasty custody dispute with your ex. You win, the court rules completely in your favor, but before you can go get your child your ex absconds to another state. You cannot find your ex or your child until one day you get a letter from a court in the new state telling you that a custody petition has been filed there. You show up with your existing court order to retrieve your child, but the judge says "no, I think the child should be with the other parent" and enters a new custody order. What then?

For a long time, this was not an uncommon occurrence. No laws were on the books requiring states to give priority to other states' custody orders beyond some constitutional duties, and those duties could be gotten around by a crafty litigant in a wide variety of ways. Then, you ended up with conflicting orders for the same child, and police or other courts not knowing which order to enforce.

Today, fortunately, this problem rarely occurs (though it sometimes still does) thanks to a series of uniform laws that have been enacted, along with a federal law. What this also means, however, is that courts are more hesitant than they once were to enter custody orders where interstate issues might be involved, so knowing the law becomes key. In today's blog post, I'll cover the basics of when a Virginia court can and cannot make enforceable custody and visitation orders where the parents do not live in the same state.

Applicable Laws

The first law to know about is federal - the Parental Kidnapping Prevention Act (usually abbreviated as PKPA). This law is meant to clarify the full faith and credit rules from the Constitution as it applies to custody and visitation provisions. It lays out in what situations a state court must give full faith and credit to another state's custody and visitation orders, and subsequently cannot apply the state's own laws and reach a different result.

The other law to know about is the Uniform Child Custody Jurisdiction and Enforcement Act (usually abbreviated as UCCJEA). This is a law that was enacted in the early 2000's in all 50 states and is almost identical state to state (thus the "uniform" part of the law). The UCCJEA replaced the Uniform Child Custody Jurisdiction Act (UCCJA) which had been in force in almost every state since the late 1970's, but which had proven too weak in a number of challenging cases.

Virginia has, of course, adopted the UCCJEA in full, and is also under the force of the PKPA. As a result, these two laws dictate how a Virginia Court will decide the jurisdiction of a custody case.

Basic Rule for an Initial Order

So, let's start at the top. Let's say there are no existing custody or visitation orders anywhere and the parents each live in different states. In what state is the custody or visitation case to be held? Well, the PKPA only applies where there is already a court order, so the UCCJEA is the sole law to determine this. Under the UCCJEA, the basic rule is that the proper state to hear a case is the child's "home state" at the time of the commencement of the case, or if the child did not have a home state as of the commencement of the custody case, then any state which had been the child's "home state" within six months prior to the filing of the case so long as at least one parent still lives in that state (I call this the basic home state rule).

While there are a few exceptions to the basic home state rule, it is where the vast majority of cases are determined. A child's "home state" is defined as the state where the child lives, so long as the child has lived in that state for at least six consecutive months (for a child less than six months old, the home state is the state the child has lived in since birth). So, if the child lives in a state for at least six months prior to the custody case being filed, that state is where the case is to be filed. If, however, the child lives in a state for at least six months, then moves and the case is filed three months later, the case still belongs in the state where the child had previously lived as long as at least one parent still lives in that state.

This rule is expressly designed to prevent forum shopping. If a parent decides another state's custody laws are more favorable, they cannot just up and move and file a custody case there - the other parent would have six months to bring his or her own case in the previous state before the new state would be allowed to make the initial determination.

Now, of course, there are loads of exceptions to the home state rule which you can already imagine. For example, there are plenty of situations in which a child won't have a home state or a state that had been the child's home state within the previous six months. Additionally, maybe the child and his or her parents lived in Georgia for years, but when the parents broke up, the father took the child and moved to Virginia while the mother moved to Maryland - so Georgia was the home state, but no parent still lives in Georgia.

In the cases where no state has jurisdiction under the basic home state rule, or where the state having jurisdiction has decided another state would be a more "convenient" forum to hear the case, then jurisdiction is with a state where the child and at least one parent has a "significant connection" beyond merely being physically present, and a substantial amount of evidence is available in that state (I call this the significant connection rule).

If all states that would have jurisdiction under either the basic home state rule or the significant connection rule decline to hear the case because another state would be a more convenient forum, then that state has jurisdiction.

Finally, if still no state has jurisdiction under any of the above rules, then whatever state the petitioning parent chooses to file in will have jurisdiction (note that in my career to date I have never encountered a case where jurisdiction under this provision was proper).

Enforcement of the Order

Once an order is entered, as long as a state that had jurisdiction under the rules above enters it, all states must fully enforce that order unless and until it is modified. This is true regardless of whether or not the state has adopted the UCCJEA (although at this point, every state has), as the PKPA uses the same criteria as the "initial order" rules in the UCCJEA in determining if an order entered by one state must be enforced by the others. As a result, under federal law, all properly entered custody orders must be enforced by every other state.

Modification of the Order

Now, as you should know, custody and visitation is modifiable over time. So, once you have an initial order entered, what state can modify it? Well, this depends on a couple of issues.

The first question is whether or not a state has what is called "exclusive, continuing jurisdiction" over the case. A court has exclusive, continuing jurisdiction if it made the currently active custody/visitation order, and the child, either parent, or someone acting as a parent still resides in the state where that court sits. In that situation, only the state with "exclusive, continuing jurisdiction" may modify the order.

If, however, the child and all parents are no longer in that state, or if the court of that state determines it is no longer a convenient forum, then that state losing its "exclusive, continuing jurisdiction." In that case, the court that made the current order can only modify it if it would have jurisdiction to make an initial order. Similarly, a state other than the one where the current order was entered has jurisdiction to modify the order if a) that state would have jurisdiction to make an original order under the basic home state rule or the significant connection rule and b) either i) the other state determines it no longer has exclusive, continuing jurisdiction or would no longer be a convenient forum, or ii) the modifying state determines no parents or children involved still live in the other state.

Some Examples

So, all of the above is a bit of a mess. Let me break it down for you a bit better with an example.

Bob and Suzy, who have both lived in Virginia all their lives and have lots of family in Virginia, have a son named George. All three live happily together in Alabama for four years. Then Bob and Suzy have a big fight, Suzy takes George and moves to Virginia, while Bob moves to West Virginia. Both Bob and Suzy want custody of George and two months later a custody case is filed.

This case is most likely to be properly heard in Virginia. This is because, while George has no current home state and Alabama was his home state within the past six months, neither parent nor George still lives in Alabama, so the basic home state rule doesn't apply. Moreover, their significant connections (family, past history, witnesses, etc.) are all in Virginia, so the significant connections rule would seem to make Virginia the right jurisdiction.

So, we have a custody case in Virginia, Bob wins, and George goes to live with Bob in West Virginia. Suzy wants more visitation time, so two months after the Virginia Order is entered, she moves next door to Bob in West Virginia and files for a modification to get more visitation time. Where does that modification need to filed? Probably still in Virginia!

Virginia no longer has exclusive, continuing jurisdiction since Suzy and George no longer live there, so it does not automatically get to be the state that modifies the order. Nonetheless, West Virginia is not George's home state yet (he's only been there for two months), and it's doubtful that George or Bob have developed connections and evidence sufficient to meet the "significant connections" test in West Virginia either - meaning West Virginia cannot modify the order. As a result, Virginia, which does still have initial order jurisdiction due to the significant connections test, but also potentially due to the "no other state" having jurisdiction rule, would still be the state to modify.

Now, let's say Virginia enters a modified order and Suzy gets more time with George. About a year later, Bob decides he wants to move to Texas and needs the order modified so that he can bring George with him. Where does he file for that modification? Now we're in West Virginia.

At that point, West Virginia is George's home state, and as Virginia still does not have exclusive, continuing jurisdiction, so West Virginia has become the proper state for the order to be entered.

Finally, the West Virginia court allows Bob and George to move to Texas. Three years later, Suzy decides she should have custody of George and moves to modify custody. Where does she file that motion? Still in West Virginia.

This is because, while Texas is now George's home state, West Virginia still holds exclusive, continuing jurisdiction, since Suzy still resides there.

Conclusion

Confused? Don't be sad - the mishmash of interstate rules is a mess that confuses many people. By and large, they're a good mess. They fix the horrible state of things that existed before they were adopted. Nonetheless, it makes proceeding in these cases without an attorney virtually impossible. If you are involved in an interstate custody and visitation dispute, I strongly advise you to talk to an attorney. If you're interested in the services of my office, you can call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to thirty minutes!

Virginia Law and the Blog Part V - Odd custody child support, modification jurisdiction, etc.

noreply@blogger.com (Samuel Leven) — Fri, 29 Jul 2016 19:25:00 +0000

As always, before reading today's blog post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Update (4/27/18): Some of the information contained in this blog post is now outdated due to changes in the law. See my 2018 Relevant Changes in the Law post for details.

Introduction

Between comments and e-mails, I get a lot of questions about blog posts. Logically, as I've posted more over time, I've gotten more questions, and sometimes instead of just answering these questions individually, I've felt that answering them for the benefit of everyone is more helpful. This is why I've developed my "Law and the Blog" series, where I occasionally go back to old blog posts and answer some questions I've gotten about them. This is the fifth post in that series, with the most recent one having been completed in November.

"You've gone into some detail about how child support is determined when custody is shared between the parents, and how to tell whether or not custody is shared. What happens when you have two kids, and custody of one is shared, but of the other is not?"

Alas, the law can only do so many things, and anticipating all the situations in which people might find themselves is not feasible. Where none of the three basic situations of child support (sole custody, shared custody, or split custody) cleanly apply to a case, it's up to the judge how best to go about it.

One of the biggest challenges we face is that our child support guidelines, for a myriad of reasons, are not "per child." There's one guideline amount for one child, and another for two children that is less than double the amount for one child. As a result, calculating the support for each child separately then adding the two numbers together does not work here. In this instance, then, I've seen judges take several approaches.

One popular approach is to calculate support for each situation as though both children were in that situation and then average the two (so, calculate the support as though both children were in a "sole custody" situation, then calculate the support as though both children were in the same "shared custody" situation, then average the two numbers). Additionally, if both children are technically in a shared custody situation but have different numbers of "days" the court will typically calculate shared support for the two children with the number of days averaged between them.

The above is the most popular approach I've encountered, but another has been to calculate sole custody support for the one child, shared custody support for the other, add the two together, then take approximately 76% of the combined number. This is because in the guidelines, support for two children is usually (though not uniformly) about 76% of what you would get if you just doubled the number for support of one child.

To compare, I'll use a super simple case. Father earns $5,000 a month, mother earns $5,000 a month, no health insurance, work-related child care, etc. Father has custody of both kids, but mother has one kid for 80 days a year (so sole custody) and one for 120 days a year (so, shared custody).

Under the first method, the sole custody support owed by the mother for both kids would be $784 per month and the shared support owed by the mother if she had both kids for 120 days a year would be $376 per month. Take the average, and you get the mother owing child support of $580 per month.

Under the second method, the sole custody support owed for the one child would be $527 per month and the shared custody support owed for the second child would be $253 per month. Add those two up and take 76% of the combined number gets you $593 per month.

So, the two methods come to very similar results.

Obviously, the whole thing gets more complicated as more children are added to the mix. As long as you can convince a judge that your proposed method is reasonable, however, the judge will be fairly free to use it.

"You've mentioned before that there is no set formula for calculating and modifying spousal support. Could we add one to an agreement and have that enforced by a court?"

Yes, absolutely. Spousal support is one of those areas where you can do virtually anything you want in a settlement agreement and the court will be required to enforce it. This means you can choose your current support based on a formula if you wish, you can lay out in the agreement when support can be changed, and you can even lay out in the agreement how the new support amount is to be calculated if it is changed. The court will enforce that language as written. You should definitely hire an attorney to get that language ironed out, however, as a court will enforce the order exactly as written, even if it says (implicitly or explicitly) something other than what you meant.

"You've previously mentioned that in a child support modification case, you file for that modification in the same court where the last order was entered. Neither my ex nor I still live where the last order was entered - do I still need to file for a modification there?"

That depends. If the last order was entered in Virginia, and either party still lives in Virginia, then you can file where the last order was entered, or you can seek to have that court transfer the case. To do that, you would file a Motion to Reopen and Transfer in the original court and seek to have the case moved where you wish. If the non-moving party is still in Virginia, then this would likely be to the locality where the non-moving party lives. If the non-moving party does not still live in Virginia, then you can seek to have the case moved to the jurisdiction where you live, but don't be surprised if the original court denies the motion if it finds that that court is more convenient for the other party to get to.

If neither of you still live in Virginia, you can open a case in the non-moving party's state seeking registration and modification of the Virginia order under the Uniform Interstate Family Support Act (UIFSA, a uniform law that has been adopted by all fifty states). Similarly, if your original order was not in Virginia, neither of you still live in that state, and the non-moving party now lives in Virginia, you can file in the J&DR Court of the non-moving party's home jurisdiction a petition under UIFSA to register the out of state order, which then gives the Virginia court the power to both enforce and modify that order. You can either then file for modification, or you can file for modification at the same time that you file for registration (the modification proceedings just cannot actually begin until the order has been registered).

Action under UIFSA does not require any action to be taken in the original court. Of note, I am planning to do blog posts on UIFSA, and its near-equivalent in the custody/visitation context, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), in the near future.

"My ex has failed to pay support for years. I filed a Rule to Show Cause and after an extensive hearing, the judge found that my ex owed the money he did, but then blamed me for not forgiving some of the support payments when my ex was unemployed a few years ago - even though he never moved to modify - and refused to hold my ex in contempt or threaten to hold him in contempt. As a result, I'm back to square one with a court order my ex now feels emboldened to violate, but my lawyer is telling me I can't appeal the ruling. Why?"

Contempt of court is an ancient matter that finds its roots in British Common Law. This power represents the court's ability to vindicate itself when someone treats the court with improper disrespect - such as by violating a court's order. Since contempt of court is a court acting on its own behalf (rather than that of a litigate) to protect itself from conduct evident to that court, by common law, contempt of court rulings could not be appealed at all.

Virginia has modified this rule by statute, allowing appeals any time someone is found in contempt. However, the law expressly only applies to an appeal of a finding of contempt itself. The law says nothing about a court's decision not to find someone in contempt. Since a statute must overturn common law principles expressly for those principles to no longer apply, the failure to say anything about a court not finding someone in contempt means that the common law rule that no appeal is allowed is still applicable to those findings - no matter how erroneous the court's reasoning may have been.

Conclusion

As always, keep the questions coming. If you need legal assistance, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an initial consultation (you may also want to check out my initial consultation policy first). Our initial consultations are free for up to half an hour!

Pets and Divorce in Virginia: Who Gets the Dog?

noreply@blogger.com (Samuel Leven) — Fri, 15 Jul 2016 18:41:00 +0000

As always, before reading today's blog post, please check out my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

What's the most contentious issue in divorce cases that has nothing to do with kids or money? In my experience, it's pets. It's no secret that as American society has evolved, we've come to view our pets more and more like members of our families. The law, however, has been slow to catch up. Nonetheless, as wills that provide for animals, concepts of "animal rights," and even animal-focused legal organizations have become more common, the issues that relate to animals have come to play a more prominent role in all fields of law. One of the biggest areas of law that can see animals at center stage is divorce law.

Yes, a divorcing couple fighting over the family pet may, from a distance, seem silly, but is it really? Especially for couples with no children, chances are you've poured a lot of time, energy, money and love into your pet. No wonder you might not want to just walk away from it. In fact, I've seen divorces where the pets were the primary issue - where a party gave up all of her rights to her spouse's retirement pension in exchange for the cat, for example, or another where the entire divorce settlement negotiation fell apart over the family horse (and no, I'm not talking about a multi-thousand dollar thoroughbred race horse here). There is actually published case law in Virginia regarding the disposition of a family dog.

The point is, pets are taking on an increasing role in divorce law, and in today's blog post, I hope to cover some of the legal issues surrounding the distribution of pets in a divorce case in Virginia.

First and Foremost: Pets are Property

No matter how much you may love your dog, cat, or other animal, the first thing you need to understand is that by law in Virginia, pets are property. That's so important a point that I'll say it again - by law in Virginia, pets are property. In theory, pets should be treated no differently in a divorce in Virginia than a TV or a sofa. Of course, theory rarely lives up to reality, and there are a number of issues that come into play that result from pets being property.

Marital Property vs. Separate Property

Let's say you marry someone who already has kids over whom they have custody. You are married for 8 years and you absolutely dedicate yourself to your step-children and the children truly do see you as another parent. Unfortunately, your marriage didn't work out quite as well as your relationship with your step-kids, and you divorce. Under Virginia law, you may nonetheless be able to get visitation with, and in some extreme cases, even custody of your ex-step-children. The same does not apply, however, for pets.

If your spouse already had a dog, for example, when you got married, and you spent your entire marriage being the only one in the house that actually took care of the dog (fed it, trained it, took it to the vet, etc.), the dog is still property, and the dog is still the separate property of your spouse. This means if you divorce, your spouse gets the dog, period (unless you have an agreement otherwise, which I'll get to below).

One of the effects of pets being property is that the rules of determining "marital" vs. "separate" property from the Virginia Code apply. This means that if the pet was owned by one party before the marriage, a gift to one party during the marriage, an inheritance of one party during the marriage, or purchased during the marriage with money that was itself separate property, the pet is separate property and goes with the spouse that owns the pet. On the other hand, if the pet is purchased during the marriage with marital money, it is marital property subject to division (for more on the difference between separate and marital property, see my blog post on the issue from October 16, 2014).

Division by Agreement

Another side effect of pets being treated like property is that you can agree to pretty much anything you want to in regards to how the pet is "distributed," even if the pet is separate property, and the court will enforce that agreement. Unlike child support or child custody and visitation, a court has no power to set aside any agreement regarding property, no matter how ridiculous it seems, unless it is susceptible to another form of attack on a contract.

As a side note, I'd point out this is one area where the fact that the pet is a living being does probably have some effect. If you decided, for whatever reason, to agree to divide a sofa by literally sawing it in half, you'd be allowed to do that. However, animal cruelty violates public policy, so an agreement to divide your cat by literally sawing it in half would not be enforceable.

Nonetheless, short of that kind of issue, you can do pretty much whatever you want with the pet by agreement, and the court will enforce that agreement.

Division by Court

If, however, you have a pet that is marital property, and you cannot reach an agreement on what to do with the pet, then the decision will be made by the court. As with all issues of marital property, the court will be guided by the rules of equitable distribution laid out in Virginia Code Section 20-107.3. This includes considering the list of factors in that Code section - in which, I would note, "the best interests of the property" is not a factor. Of particular relevance is that the Code states "the Court may... divide or transfer or order the division or transfer, or both, of jointly owned marital property."

For a long time, all courts took this to mean that all that a court can do is award the pet to one spouse or the other and then order the other spouse to be compensated for a share (usually half) of the determined monetary value of the pet. Of course, pets have all sorts of sentimental value, but as property, that doesn't go into the equation.

It's important to note that most judges still view the division of pets this way. As a result, many fights have erupted over who took care of the pet the most (the contributions of each party to the "maintenance" of property is one of the explicit factors for dividing property), whether or not the pet is even marital property, whether or not one party has "title" to the pet (since a court cannot order "title" to be transferred even for marital property - only for the other spouse to be awarded a part of the monetary value) and so on. Where the court does divide the pet, usually the party that has taken the most care of the pet will get it, but that's of course not always true.

However, some judges have taken a different view. Several judges have now concluded that the word "may" in the Code section makes the division or transfer optional, and that the court may also elect not to divide or transfer a marital pet, and instead order the joint ownership to be maintained while awarding varying forms of possession. What does that mean? It means custody and visitation. Yes, several trial judges in Virginia have ordered custody and visitation arrangements regarding pets in the past five years or so based on this reading of the law. The judges have asserted this is allowed because a) as weird as it would be, they could do exactly the same thing for a sofa or TV if they thought it appropriate, and b) given all of the intrinsic value of a pet, determining an equitable distribution of the pet is unreasonable.

The Court of Appeals has yet to weigh in on this matter, and as a result it is not the law across Virginia, but it's worth knowing that those judges are out there, and the idea is gaining popularity. Now, as pets are property, the "best interests" of the pets are not factors in setting that custody and visitation schedule, but nonetheless, the schedules put out by some of these judges have resembled common child custody and visitation schedules quite a bit.

All of that being said, I do want to re-emphasize once again that most judges still will distribute the pet to one spouse or the other rather than order a custody and visitation arrangement.

A Brief Note About Protective Orders

Pets' status as property has meant many bad things for pets over the years. One of the worst has been in the context of protective orders. We heard many stories where a protective order was entered and the estranged spouse, ex-boyfriend or girlfriend, or other abuser would do something horrific to a pet in retaliation, with little penalty. Even worse, if the ex-boyfriend or girlfriend or the estranged spouse technically owned (either on his or her own, or jointly) the pet, they could just take the pet and disappear with it.

In response to this problem, last year Virginia became one of the first states in the country to include pets in protective orders. This is a very small step - protective orders still cannot be taken out on behalf of pets or in response to violence against pets - but an important one. Today, if someone obtains a protective order, they not only can require the target of the protective order to stay away from them, their home, their family members and their children, but they can also require the target to stay away from the household pets. This means that attacking a pet in retaliation for a protective order being entered, or running off with the pet, would now violate the protective order itself, which is a criminal offense subject to more severe penalties than most animal cruelty charges.

Conclusion

While the law is always changing and developing, how to deal with pets in divorce is a very complicated and growing issue. If you are involved in a divorce and need help figuring out what to do with the pets, please feel free to call us at (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!

Virginia Child Support When Custody is Shared - The Basics of the Shared Custody Guidelines

noreply@blogger.com (Samuel Leven) — Fri, 01 Jul 2016 18:54:00 +0000

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

The concept of child support is generally easily understood. Both parents have a legal duty to support their children. When the parents are married and living together, this is usually simple - you support your children simply by taking care of them. When you are separated, however, that duty doesn't go away - but it is more complicated to handle. Child support law seeks to handle that issue by requiring the parent who no longer lives with the child to provide funds to the parent who does live with the child so that parent can better care for the child. It is assumed that the parent living with the child (the "custodial parent") still performs his or her duties directly.

But what happens when it's not really that easy to say who the child lives with? When the child in all practical senses lives with both parents? Each parent has a duty to support the child while he or she is with them and while he or she is with the other parent. This is where the concept of shared custody child support comes from. In today's post, I will cover the very basics of how to figure out if you are in a "shared custody" child support situation, and, if so, how to figure out that support level.

History

For most of Virginia history, the concept of "shared custody" was unfamiliar to the law. Visitation, surprisingly enough, is a fairly modern concept. In a divorce, one parent got the child (under the English common law and in Virginia, up until the mid to late 1800's, this parent was ALWAYS, without exception, the father - then this shifted to being usually the mother under what was known as the "tender years doctrine" - and then this shifted to the "best interests of the child" test that is used today) and that was that. Now, once it became the case that the parent getting the child was sometimes the mother, as this was still a time where a woman earning money was rare, the concept of child support was largely born. Still for most of Virginia law, the award of child support was largely arbitrary - a judge just trying to figure out how much was needed.

Then, largely in response to high poverty rates among single mothers, Congress passed a law in 1984 requiring all states to adopt guidelines. Virginia finally complied and did so in 1988. These guidelines set the basics of support, and I covered how they work in my blog post on calculating child support from April of 2014. However, very quickly an unfairness began to emerge. Namely, now that visitation is widely available and expansive, what happens if the "non-custodial" parent who had to pay child support nonetheless had the child with him or her for a substantial portion of the year? Why should you pay support if you have the child for 182 days a year, but receive support if you have the child 183 days? Wasn't this allowing the parent with more time to get out of supporting the child for a good chunk of the year, while also giving them a windfall?

As a result, in the early 1990's, the concept of shared custody child support was born and finally adopted by the Virginia General Assembly in 1992. The point? Come up with a support number that really does recognize that both parents provide their support directly to the child when the child is with him or her, and still requires the parents to provide support to the child while he or she is living with the other parent.

The Basics of How it Works

As with regular "sole" custody child support, the basics for how shared custody works are found in Virginia Code Section 20-108.2. The shared custody guidelines are used when both parents have the child living with them for at least 90 days a year. If one parent has the child fewer than 90 days, then the "sole" custody guidelines (covered in my blog post from April, 2014 mentioned before) still apply.

If you are using the shared custody guidelines, you start with the premise that the cost to support the child is higher in a shared custody situation than a sole custody one - after all, they have two homes to be maintained instead of one. As a result, when you take the parents' combined incomes and calculate the "basic child support need" from the guidelines table in Code Section 20-108.2, you then multiply that number by 1.4. This gives you the basic child support need for shared custody.

Next, you need to figure out how much support each parent should pay while the child is in the other parent's care. To do this, you calculate what percentage of the year each parent has the child (called each parent's "custodial share"). Then you calculate the support owed to each parent. Typically you start with the mother (assuming opposite sex parents, but the same rules apply with same sex parents) by multiplying her custodial share by the total shared support, then adding in her work-related child care costs (if any) and the amount she pays for the child's health insurance (if any). This gives you the total support the child should receive from both parents while in the mother's care. Then, you multiply the father's share of the parents' total income by that number to give you how much support the father should be paying the mother while the children are in the mother's care.

Then, you do the same for the father. Multiply his custodial share by the total shared support, add in his work-related child care costs (if any) and amount he pays for the child's health insurance (if any) and that gives you how much support the child should get from both parents while in the father's care. You then multiply that number by the mother's income share, and that tells you how much support she should be paying the father while the child is in his care.

Now, of course, it would be silly for both the father to pay the mother child support and the mother to pay the father child support, so instead we take whoever should be paying more and subtract the amount the other parent should be paying from the amount he or she should be paying. What is left is the amount of support that parent should be paying.

Now, there is a final step here which many people forget about. The point of shared custody support is to reduce the burden on the child support payor by recognizing that he or she pays a lot of support by directly supporting the child while the child is in that parent's custody. However, the 1.4 multiplier of total support creates some odd situations (very rarely, but they do happen) where the payor is paying more under the shared support guidelines than he or she would under the sole custody support guidelines. As a result, the law does say that where sole custody guidelines have the payor paying less than the shared custody guidelines do, then the sole custody guidelines are to be used. This is a very rare occurrence, however.

A Simple Example

That probably sounds complicated, largely because it is. As a result, I'll use the same example that I did back in my April of 2014 post - let's assume there is one child, the father makes $7,000 per month and the mother makes $3,000 per month. Let's also assume the mother has the child 190 days per year and the father has the child for 175 days per year. Finally, unlike that example, I'll say there is no health insurance, but both parents pay $500 per month in work-related child care.

Plugging these numbers into the guidelines gives you the following - the $10,000 monthly combined income gives a basic support need from the Code of $1,054 per month. Multiplying that by 1.4 gives us a basic shared guideline support need of $1,476 per month.

Now, the mother has a custody share of 52.1%. If you take 52.1% of $1,476, that gives you $768 per month in support need while in the mother's custody, and then add the $500 per month in work-related child care, and you now have the child needing total support of $1,268 per month while in the mother's care. The father's income share is 70%, and 70% of $1,268 is $888, and that is the amount per month is support he should be paying the mother.

Now, for the father, he has a custody share of 47.9%. Taking 47.9% of $1,476, yields $707 per month in support need while in the father's care. Add in his $500 per month in work-related child care, and you get the child needing a total of $1,207 per month while in the father's care. The mother's income share is 30%, so taking 30% of $1,207 yields $362 per month as the amount of support the mother should pay the father.

Next, taking the net of these numbers gives you a final shared custody child support obligation that requires the father to pay the mother $525 per month in child support.

Finally, if we plug these numbers into the sole custody guidelines, we'd see that using those guidelines, the father would owe child support of either $1,088 per month or $938 per month (depending on whether the court allowed him to still use his work-related child care - courts are split on this for sole custody). Since both of those numbers are well above the shared custody guideline amount, the shared custody number of $525 per month would be the father's child support obligation.

So what is a "day"?

You might think this question is silly, but entire cases have turned on the question of "what is a day." The Code says that a "day" is a 24 hour period, but then also says that if the parent who has the child overnight less often has the child overnight but for less than a full 24 hours, there "is a presumption" that each parent has the child for one-half a day during that period.

So, as you can imagine a lot of litigation goes into how many "days" each parent has the child. Note that, generally, if you had the child for 16 hours a day, but the child always went to the other parent's house for an overnight neither of you would technically have any "days" under the Code (since you never have the child for 24 hours and the other parent cannot utilize the half day presumption since they have more overnights). This means judges actually have a lot of discretion in deciding what a day is, and arguments over fractions of days are common.

How do you figure out the future?

Also inherent to this problem is figuring out the number of days each parent will have the child in the future (since child support is inherently prospective), especially if custody and visitation is not well defined, or the order has a history of being largely disregarded. The Code requires you figure out the number of days in the year that each parent has the child, and expressly authorizes the judge to choose at his or her own discretion on what date and at what time the "year" used to calculate the days begins. As a result, if the judge thinks the future is uncertain, he or she might use one year prior to the hearing as the starting date, and look back in the past for that guidance. If, however, the judge thinks the future will be dramatically different from the past, he or she may choose the date of the hearing and try to predict going forward what it will be. Usually, where there is no clear cut custody/visitation order, or there have been wide deviations from the order, the judge will look at the past year, but if a new custody/visitation order is being entered simultaneously or one already exists and has been closely followed, the judge will have the date of the hearing be day one and use the custody/visitation order to figure out days.

That all being said, however, neither of those options (the "year" beginning one year prior to the hearing or beginning the day of the hearing) are required, and there are plenty of battles in litigation over when the year should begin.

Conclusion

Every time the legislature encounters general laws that are, at times, unfair, and tries to combat that unfairness by carving out exceptions, it creates new layers of complexity. The shared guidelines for child support are a perfect example of this. The General Assembly (reasonably and correctly) concluded that the old guidelines were unfair when custody was near even between the parents, so they took a relatively simple formula and made it dramatically more complicated. I cannot recommend strongly enough that if you think you might be in a shared custody support situation, you really need to speak with an attorney. If you're interested in my services, you can call (703)281-0134 to arrange a consultation (please read my initial consultation policy first), or e-mail me at SLeven@thebaldwinlawfirm.com. Our initial consultations are free for up to half an hour!

Not Paying for the Rest of Your Life - Terminating Spousal Support in Virginia

noreply@blogger.com (Samuel Leven) — Fri, 17 Jun 2016 16:58:00 +0000

Introduction

If you've been ordered to pay spousal support (formerly known as "alimony") as a result of your divorce in Virginia, you probably have one question - when can you stop? The answer to that question is somewhat complicated, and depends in part on whether your support was agreed to or court ordered, whether or not the reason you want payments to stop is "self-executing," and whether there are any lingering issues.

In this blog post, I am going to do a basic overview of the law regarding the termination of spousal support. Please note that I am referring to spousal support ordered as part of a divorce (either by the court or by contract) - not spousal support ordered in the J&DR Court, Separate Maintenance, or pendente lite spousal support (for more on the different types of spousal support, see my blog post on the subject).

What can cause spousal support to be terminated?

So, to start off, you might want to know in what situations existing spousal support can be terminated. There are, in fact, seven situations in which ongoing spousal support terminates:

The support payor dies;
The support payee dies;
The support payee remarries;
The support payee cohabits with another "in a relationship analogous to marriage" for more than one year;
If support was ordered for a defined duration, the defined duration ends;
There has been a "material change of circumstances" since the original support order and the court orders support eliminated; or
Another condition set in the parties' agreement has occurred.

So, where does all of this come from? Numbers 1 through 4 are found in Virginia Code Section 20-109. Number 5 is a natural result of a court being authorized to order or the parties being authorized to agree to a defined duration of support. Number 6 is a result of the court's power to modify support (also found in Code Section 20-109). Number 7 is a result of parties' power to set support by agreement in a manner the court must honor.

Exceptions to spousal support termination

So, as you might imagine, all of the above have exceptions. Numbers 1 through 4 can be waived by agreement (note, however, that unlike most issues with spousal support in agreements, waiving numbers 1 through 4 can only be accomplished expressly - such as by saying, for example, "spousal support will not terminate upon remarriage of the payee" - silence, or even saying something like "spousal support cannot be modified or terminated except as stated in this agreement" keeps numbers 1 through 4 in effect). Number 5, if the support was set by a court order, can be overcome because defined duration support can be extended to a longer duration or to indefinite support if a motion to modify is filed prior to the expiration of the support and the court grants it. Number 6 is not available for support set by agreement unless the agreement expressly allows for it. Number 7 is only available in support set by agreement.

One of the terminating conditions has occurred - now what do I do?

So, say you think one of the terminating conditions has occurred - you might be wondering what you do next. Well, that depends in part on whether or not the termination is what we call "self-executing." A termination event is self-executing if its occurrence is obvious and indisputable - if there can be no reasonable argument as to whether or not something has occurred. In the list above, numbers 1, 2, 3 and 5 are always self-executing (so long as they are applicable to your case), while Numbers 4 and 6 are never self-executing. Number 7 can be self-executing, or it can not be, depending on how the agreement is written.

If you are dealing with a situation that involves self-executing support termination, you are free to simply stop paying when the event occurs. However, if you are dealing with a situation that is not self-executing, you must file for your termination in court, and continue paying until the court rules you no longer have to. If you stop paying, even after a terminating event has occurred, if it is not self-executing you can be found in contempt of court and rack up a substantial arrearage (the court can only make the termination date effective the date you filed your motion, no earlier).

Now, I would note that last year we saw a Court of Appeals opinion that reigned in the harshness of the non-self-executing rule, but it was vacated when a motion to rehear was granted, and the parties settled before rehearing, so the Court of Appeals opinion actually is not good law right now and there's no guarantee a different panel of the Court of Appeals would reach the same conclusion (even that panel was a 2-1 decision), so we must assume that the rules regarding non-self-executing terminations remain in effect.

How to file the motion

If you are dealing with a situation that solely involves termination of support (say number 4 above, or one of the conditions laid out for termination in an agreement that isn't self-executing), then you file a "Motion to Reopen and Terminate Spousal Support." If, however, your reason for wanting support to terminate could also be a reason for wanting it to be reduced if the court determines termination isn't proper (such as in most cases where number 6 above would apply), you should file a "Motion to Reopen and Terminate or Reduce Spousal Support."

Reasons to go to court with self-executing terminations

Now, despite what I said about above self-executing termination events, the reality is there are some situations where you might want to go to court anyways. First and foremost, if you believe a self-executing termination event has occurred (such as the payee's remarriage) but you are wrong, you could be hit with contempt and a large arrearage. If you file in court to get an order terminating your support, you'll be protected from that possibility.

That being said, there are a couple other reasons to potentially go to court even with a self-executing termination. For example, if the reason your support is terminated is because your ex has re-married, you may have a claim to get some of your previously paid support back. Specifically, Virginia Code Section 20-110 places an affirmative duty on a payee former spouse to tell the spousal support payor if he or she remarries. If the payee spouse fails to inform you of the remarriage, and as a result you make payments after the remarriage, you are entitled to be reimbursed those payments plus interest, costs and attorneys' fees.

Another reason is that if you ever fell behind on your payments or your ex ever claims that you missed a payment and you and your ex do not agree on how much you still owe, you may want to get a court order terminating your support since it will also establish what arrearage, if any, you owe and how and when it is to be paid.

Conclusion

Terminating spousal support is almost as complicated as establishing it. Doing it without an attorney can set you up for a whole lot of trouble. If you are paying spousal support and think it should terminate (or if you are receiving it and your ex has stopped paying improperly), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!

Virginia Parental Placement Adoption - When the Families Find Each Other

noreply@blogger.com (Samuel Leven) — Fri, 03 Jun 2016 18:49:00 +0000

As always, before reading this post, please review our disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

There are many situations in which an adoption might occur in Virginia - one of them, a step-parent adopting their step-child, I have previously covered on this blog. However, when most people think of "adoption" they think of the image you see on TV - a family adopting a baby or child completely unrelated to them biologically. In Virginia, there are three basic forms of what I call "stranger adoption" - parental placement adoption, agency adoption, and foster care adoption.

Agency adoption is probably what most people think of in an adoption. This is when an agency, either a public agency (such as the state's Department of Social Services) or a private adoption agency, already has custody of the child and the biological parents' custodial rights have already been terminated, and the adoptive parents apply to adopt a child through the agency. Foster care adoption is a sub-set of agency adoption where a child has been placed in foster care pending his or her adoption or the termination proceedings against his or her biological parents, and then after at least 18 months in the foster parents' home, the foster parents decide they would like to adopt the child. Parental placement adoption occurs where the birth parents and the adoptive parents find each other, and arrange an adoption without involvement by the state or any agencies.

In today's blog post, I am going to cover some of the basics of how parental placement adoption works in Virginia.

Pros and Cons of Parental Placement

First off, for any set of adoptive parents, the first decision to make is what method to choose for adopting. Parental placement has several pros and several cons. To many, the biggest pro is that parental placement adoption is substantially cheaper than agency adoption. In Northern Virginia, between legal fees and other costs, you can expect to spend between $8,000 to $15,000 on a parental placement adoption. An agency adoption, on the other hand, can cost you $20,000 or more.

Another pro of parental placement adoptions is that you know a lot more about where the child is coming from - you are much less likely to end up surprised by a child with severe issues than if you adopt from an agency. Finally, many adoptive parents prefer parental placement adoptions because it allows them to form a relationship with the biological parent(s), and they know this is something the biological parent(s) have chosen, instead of something that has been forced on them.

There are some cons to consider, however. Perhaps the biggest is that a so-called "closed" adoption (where the biological parents don't know who adopted their child) is virtually impossible - you may not be required to provide those parents any information, but they may well be able to find you since they know who you are to begin with. Another con is that, unlike in an agency adoption, when you begin the adoption process with a parental placement adoption, the biological parents have not yet lost their parental rights, and they can withdraw their consent without cause at any time up until 7 days after their parental rights are terminated, at which time they would get to take the child back. No contract promising to let you adopt is legally enforceable in Virginia, so if they change their mind, there is really nothing you can do about it. If you are uncertain of the biological parent(s)' level of commitment to the process, those 7 days in particular can be nerve-wracking.

Babies vs. Children

As you might expect, the vast majority of parental placement adoptions involve infants. Usually the biological parents and adoptive parents have met prior to the baby being born and begun to make arrangements. As a result, I will be talking in the rest of this post under the assumption that the adoption will be of a new-born infant. However, it will be fairly obvious when something I say is specifically applicable to the adoption of newborns, and the process is the same whether the child is a newborn or not.

Who Should Have an Attorney

Ideally, all parties (the adoptive parents and each biological parent) should have an attorney to guide them through the process. The rules are complicated, and I cannot hope to get to all of them in this blog post. This process would be daunting for anyone to go through unrepresented, but the adoptive parents are likely the ones most in need of representation.

Exchange of Funds

Many people feel, reasonably, that if a child is going to be the child of the adoptive parents, those parents should share in some of the costs of caring for that child prior to the adoption. However, out of a great deal of fear of a market opening up to "sell" children, the exchange of funds between adoptive and biological parents in a parental placement adoption is heavily regulated. Adoptive parents can only pay for very specific things (some examples include the biological mother's pregnancy-related medical costs, food for the biological mother to eat when she is no longer able to work due to the pregnancy, and the biological parent(s)' attorney's fees). Any funds given outside of these allowed amounts can cause an entire adoption to fall through. It is usually best to work out a contract with the biological parents of what you will pay and how. This contract will be legally enforceable, and can be provided as evidence to the court if questions are later raised of improper payments.

Home Study and Father's Consent

Generally in a parental placement adoption, the first two formal steps to be taken are a home study and obtaining the biological father's consent to the adoption. This is because if you are adopting a newborn, these two steps can be completed before the child has even been born. A home study is a process whereby a certified agency will conduct an evaluation of you, your home, and the biological parents to determine if an adoption is proper. A parental placement adoption cannot be allowed to proceed unless the court that will eventually handle the adoption is provided with a positive home study report. Additionally, the biological father can consent to a parental placement adoption by signing a simple affidavit that can be prepared by your attorney at any time prior to the child's birth. If the biological parents are unmarried, this is particularly convenient, because once ten days have passed after the biological father signs the consent, he cannot take it back, and does not have to be further involved in the process at all.

Taking Custody of the Child

The next step is to actually take custody of the child. If you are not adopting a newborn, this is simple enough - it literally just involves the biological parent giving you the child, and signing a sort of power of attorney that you can show to the child's doctors and school officials while the adoption is pending to show that you now have the child. For a newborn, this is a little more complicated, as this involves having the hospital release the child to you. Some hospitals simply refuse to do this, and make the biological mother take the child out of the hospital and hand the child off to the adoptive parents once they are off hospital grounds. Most hospitals, however, will let the adoptive parents take the child home as long as the biological mother signs a number of waivers.

Juvenile Court Hearing

On the day the child is born, or the day the adoptive parents take custody of the child, a petition can be filed in the local Juvenile and Domestic Relations District Court to conduct what's called a "birth mother's consent hearing." The court cannot hold the hearing until the child is at least three days old, but it will usually schedule a hearing for pretty shortly thereafter. As part of the process, the court will appoint a Guardian ad Litem, an attorney whose job it is to represent the child, to ensure the child's interests are protected. It will be the adoptive parents' responsibility to pay the Guardian ad Litem.

At the hearing, the court will ask the biological mother a number of questions to ensure that she is really, truly consenting to this adoption, that it was not coerced, and that funds have not been paid improperly. The court will also review the home study report, the biological father's consent form, and ask for the opinion of the Guardian ad Litem, who by the time of the hearing will have interviewed the adoptive parents and the biological mother (and the child if the child is old enough). Assuming the Guardian ad Litem approves and no issues occur with the biological mother's testimony, the J&DR Court Judge will then sign an Order which formally grants the adoptive parents legal and physical custody of the child, and terminates the biological parents' parental rights. The biological mother has 7 days from then to withdraw her consent, and if she does not, the order is effectively final.

Circuit Court Petition

Once those 7 days have passed, the biological parents are no longer part of the process. Now the adoptive parents can file their Petition for Adoption in the local Circuit Court. There a judge will review the home study report and the order of the J&DR Court, and if everything is in order, the judge will enter what's called an "Interlocutory Order." This Order grants the adoption on a probationary basis to the adoptive parents. Thereafter, the same agency that conducted the home study must conduct three "investigative visits" to the home of the adoptive parents to review how they are handling parenthood of the child. The three visits must be completed within six months of each other, and in most cases are usually conducted once a month for three months.

Once the agency completes its three investigative visits, it prepares and sends to the court a report on its investigation. Assuming the report is positive, the Circuit Court then has the power to enter the Final Order of Adoption. The Final Order of Adoption is the final document making the full adoption official, changing the name of the child (if desired by the adoptive parents), and formally making the child the legal child of the adoptive parents. Once the Final Order of Adoption has been entered, the adoption is over. As an added bonus, except in very rare and limited circumstances, once the Final Order of Adoption has been on the books for at least 6 months, its validity cannot be challenged by anyone for any reason.

Beware of Emotional Scammers

Just one note of caution - while you may not be able as adoptive parents to give biological parents much money, that doesn't mean there aren't scams out there. Some people try to scam others out of funds, but most just do it for attention. In the adoption world, we refer to these people as "emotional scammers." They just thrive on the attention they get from the hopeful adoptive parents, and most adoptive parents are too hopeful to catch the warning signs (especially since they aren't being asked for any money). As you can imagine, this is frequently devastating to an adoptive couple, and I always warn my hopeful adoptive parent clients to tell me if anything ever seems off, and to just try not to get their hopes up until they actually have the child in their custody.

Conclusion

A parental placement adoption is a very rewarding way to adopt a child, but it is also replete with procedural pit-falls. For example, the manner of obtaining the birth father's consent, or negating your requirement to obtain it, can be different depending on whether the birth father is an assumed, acknowledged, or putative father - and this is just one of the many hurdles faced when people try to tackle this kind of adoption alone. As a result, if you are interested in pursuing a parental placement adoption, I would strongly encourage you to hire an attorney from the outset. Our firm handles these types of adoptions, and if you are interested in our services you can feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation. Our initial consultations are free for up to half an hour!

Virginia Spousal Support Myths vs. Reality

noreply@blogger.com (Samuel Leven) — Fri, 20 May 2016 18:57:00 +0000

As always, before reading today's blog post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Back in 2014, I did a blog post on the myths vs. the reality of child support law in Virginia. It covered some of the most common misconceptions I routinely encountered regarding child support, and was fairly well received. Nonetheless, I do find myself facing more and more often similar misconceptions regarding spousal support. In today's blog post, I hope to similarly take on some of the most common of those misconceptions I encounter. As with the child support post, the format of this post will be a presentation of a common spousal support myth I encounter, a 1-2 sentence statement of the "reality" then a longer explanation.

Myth: I can figure out what spousal support should be based on a formula.

Reality: There is no accepted formula in Virginia for calculating spousal support, and you would rely on one at your own peril.

Unlike child support, spousal support does not have guidelines. Well, that's not completely true - in J&DR spousal support cases, and in a few local jurisdictions for divorce cases, there are guidelines for setting spousal support pendente lite (temporary support awards that expire when the litigation ends), but there are no guidelines for a final award. Instead, there are a list of factors the judge must consider, and then the judge must come up with a proper award from those factors. Many judges won't even allow "guidelines" to be presented in a spousal support case. As a result, if you've planned your case around "guidelines," you could be in trouble.

Myth: I can change spousal support if there's been a "material change in circumstances."

Reality: A material change of circumstances is sufficient to modify spousal support only if you are subject to an indefinite spousal support award, or you are within the time period of a reservation of spousal support. Otherwise, the situation is complicated.

Child Support, custody, and visitation can all be changed with a material change in circumstances, so it's not surprising that most people think spousal support is the same way. However, as the post I just linked to points out, spousal support is much more complicated.

It's worth noting that once upon a time in Virginia, spousal support could not be modified. Once it was ordered it was in effect for life and could not be changed unless either party died or the person receiving the support re-married. In around the 1920's, the General Assembly stepped in and changed this, but because the "common law" rule is that spousal support can never be modified, the modification rules come purely from statutes.

So, the first question with spousal support is whether or not it can be modified. If spousal support was set by a settlement agreement or contract, it can only be modified if the agreement itself specifically states when and how support can be modified. If the agreement is silent as to modification, then it cannot be modified. If the agreement says it can be modified, then the rules set in the agreement dictate how it is modified.

If spousal support has been set by a court, then it can be modified unless 1) the court ordered defined duration spousal support and the support has now ended, or 2) the court declined to award spousal support at all, and (and this "and" applies to both 1 and 2) the court either A) did not order that there be what's called a "reservation" of spousal support, or B) the court did order a reservation of spousal support, but the reservation time has now passed. So, unless you have either 1 or 2 and either A or B, court ordered spousal support can always be modified.

So, the next step is how is court ordered support modified? Well, if the court ordered indefinite spousal support (as in, no set end date), or if there is no spousal support being paid at the moment but a reservation is in effect, then a material change in circumstances allows a modification. However, where the court ordered defined duration support, and that support is still ongoing, a material change in circumstances is neither necessary nor sufficient to modify support. Instead, the party must show either that 1) something the court thought would happen has not happened (or something the court thought wouldn't happen has happened) through no fault of the party seeking modification, or 2) there's been a material change in circumstances not foreseen by the court when it made its order. So, in that situation, while a material change in circumstances can cause spousal support to be eligible for modification, it is only available to do so when the material change was something the court did not foresee when it made its initial order.

Myth: I'm entitled to be supported sufficiently to live the same lifestyle as I did before the divorce.

Reality: First the court must determine that you are entitled to any spousal support, then, if it does so determine, the court uses a list of factors to set your support, of which your lifestyle prior to divorce is only one. In fact, the most important consideration for the court in setting the amount of support tends to be what you need and what the payor is able to pay.

So, the first thing the court must consider is whether you're entitled to support at all - and your lifestyle prior to the marriage is not really part of that consideration. Instead, the court considers what led to the breakup of your marriage, and, typically, your relative incomes. Then the court when setting the amount and duration of support considers 13 factors laid out in Virginia Code Section 20-107.1(E), of which your lifestyle during the marriage is just one factor. Amongst those factors is not only your current income and expenses, but also your earning capacity - so if the court thinks you are voluntarily underemployed, it might act as though you earn far more than you actually do. Finally, the court considers what you need (including consideration of what your earnings are and/or what they should be) and what the payor can actually pay, then sets support accordingly.

Considering the financial disruption that occurs during a divorce, let me put this bluntly. In my legal career to date, I have never once seen a judge order someone to pay an amount of spousal support that would be sufficient to maintain the other spouse in the "same lifestyle" as they had prior to the separation and divorce. As a result, you would be doing yourself a grave disservice if you come into the case thinking you will receive such an amount of support.

Myth: I should expect spousal support to last about half the duration of the marriage.

Reality: While some judges do like to follow this "rule of thumb," doing so specifically would be contrary to the law, and in fact most cases do not warrant this kind of award. Instead, the most typical consideration for the duration of the award is whether the payee can ever reasonably be expected to be able to solely support him or herself, and if so, how long that will take.

Until just a couple of decades ago, spousal support was always indefinite - as in it had no set end date. Then the General Assembly decided the court should have the option of having what's called "defined duration" support, where there is a set end date, and sure enough, today the vast majority of spousal support awards are defined duration awards. The General Assembly also decided that situations where a spousal support award may not be warranted right away, but might be in the future, should also be addressed, so it created the concept of a "reservation" of spousal support. A reservation basically means no support is awarded right now, but until the reservation expires either party can come back to court and seek spousal support if something changes. The General Assembly also said that, unless "good cause" is shown otherwise, the duration of the reservation should be half the length of the marriage.

You can see where I'm going with this - somewhere along the line people started assuming that the presumed duration of the reservation meant the duration of a defined duration spousal support award also should be half the length of the marriage. Even a number of judges started operating under that assumption. However, the Court of Appeals has repeatedly made clear that this is not a good rule of thumb to operate under. Instead, the trial court must figure out what it expects to happen over time, and that if whatever caused the trial court to think support is warranted right now will likely change, the court should target that date for the end of its defined duration. As a result, the defined duration might be well less than half the length of marriage (I've seen a case, for example, that resulted in one year of spousal support despite a nine year marriage), or it might be well more (I've seen 5 years of support awarded for a marriage that lasted 3 years, and knew an attorney who had a case where indefinite support was awarded for a marriage that lasted 18 months).

Considering that, as I said in the previous section, the most important factors for the court tends to be what the payor can pay and what the payee can (or should) need, the most important factor for the court in figuring out the length of a defined duration support award tends to be figuring out when the payee no longer will (or should) need the support.

Now, the way the length of marriage tends to come into this is that if one spouse, as often happens, stepped back in his or her career to allow the other spouse to thrive in his or hers, then the longer the marriage, the longer that step back lasted and the harder it will be for that spouse to regain their full place in the labor market. This is why someone who's been a housewife or househusband for 30 years is very likely to get indefinite spousal support - because being out of the job market that long makes it very unlikely he or she will ever be able to fully support him or herself on their own. In the meantime, if you only stepped back for two years, it might only take you two years or so of support to recover.

So, all in all, the "half the length of the marriage" rule of thumb, while some judges still follow it, is usually worth forgetting.

Myth: It won't really affect my request for spousal support if I have sex with my significant other after my spouse and I have separated.

Reality: By law, sex with someone other than your spouse is still adultery, even if you are separated, so the statutory bar to spousal support will still apply to you unless you can prove that your different economic circumstances are so substantial as to be able to say failing to award you spousal support would be a miscarriage of justice.

I recently covered in this blog the topic of spousal support and adultery. Specifically that adultery bars the adulterer from receiving spousal support unless applying the bar would be a "manifest injustice." Nonetheless, I repeatedly encounter the misconception that once you are separated, it's no longer adultery. That just isn't true. Until you are divorced, you are still legally married, and sex with anyone else is adultery. As a result, even if that sex happens after you are separated, you are still subject to the statutory bar to spousal support.

Now realistically speaking, the fact that the adultery happened post-separation does strengthen your manifest injustice case. This is because the manifest injustice calculation considers both the "degrees of fault" in the divorce and the "relative economic circumstances" of the parties. So, if your adultery occurred post-separation, then it cannot be part of the "degrees of fault" calculation. But nonetheless, any other thing you did to contribute to your divorce would still be considered. The reality is, the manifest injustice exception was designed to apply to only the smallest sliver of cases where you might expect the party seeking support to be rendered destitute if they are not supported. The likelihood that any given case will qualify for that exception is low, and the fact that your adultery occurred post-separation does not particularly increase those odds.

Conclusion

This post represents just some of the many misconceptions I encounter every day in spousal support cases. If you are involved in a spousal support case, I would strongly encourage you to hire an attorney to help you work through all the misconceptions you may have. If you are interested in my services, and have read my initial consultation policy, you can reach out to me by e-mail at SLeven@thebaldwinlawfirm.com, or by phone at (703)281-0134. Our initial consultations are free for up to half an hour!

Classic Law is Your Friend: Virginia Child Custody and Relocation Law

noreply@blogger.com (Samuel Leven) — Fri, 06 May 2016 17:51:00 +0000

Whenever I see legal issues come up in "pop culture" - such as in popular TV shows - it always catches my attention. Especially if it's in a field that I practice. I will admit, when things are covered in a manner that I find incomplete or flawed, I feel fairly compelled to act to "correct the record" with a blog post. That's how I've felt about the last few weeks watching family law matters be handled with extreme inaccuracy on the TV show Grey's Anatomy. I understand the need for dramatic license, but there's a point of it going too far...

Anyways, to cut a long story short, the custody dispute that wrapped up in yesterday's episode had my attention because it involved relocation law, but almost no relocation law principles were discussed. As I told a friend, in the real world, the case wouldn't have even been close. So, in order to satiate my desire to "correct the record" to the world, I've decided to go ahead and make today's blog post a "classic" post and to re-post my piece on relocation law, originally published on July 18, 2013 and titled "You Can't Take the Kids and Run - Relocation and Child Custody" with some minor edits.

As always, before reading this blog post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

The reality is that, unless you are a particularly stubborn person, or a person who managed to find, and could afford, your dream house right out of college, almost all of us will move during our adult lives. In fact, we may move frequently. For most people, this is not a big deal - sure, it may be inconvenient, but a few days of packing, a day or two of actual moving, a few days of unpacking and it’s done. For people with children who do not live with the child’s other parents, however, it can quickly devolve into a nightmare.

There has long been recognized in the United States a right to travel and move freely within the United States - not only within your own state, but from state to state. This is, in fact, considered a “fundamental” constitutional right. In other words, a constitutional right that is so basic, it cannot be infringed upon by the government without the government meeting the most constitutionally rigid of tests - “strict scrutiny” - wherein the government must prove that its actions are “narrowly tailored” (as in, this is the least restrictive approach possible) to resolve a “compelling government interest.” So, if you have custody of your child, the other parent absolutely cannot prevent you from moving. But, the other parent can prevent you from bringing your child with you, and therein lies the problem.

Relocation cases in the child custody context are difficult issues. For one, they inherently affect the custodial parent far more than the non-custodial parent. A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse. It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right. In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.

Relocation Cases - Burden of Proof, etc.

A typical relocation case begins with the custodial parent giving the court and the non-custodial parent the mandatory 30 days’ advance notice of the relocation. If the non-custodial parent does nothing, the relocation happens, and any new case involving custody and visitation will treat the relocation as given and the non-custodial parent as essentially having forfeited his or her right to object to the relocation (assuming the custodial parent did, in fact, give the mandated notice properly and the proper amount of time in advance). When a disputed relocation case arises, it happens when the non-custodial parent during that 30 day window files a motion to enjoin the relocation. That’s where the “fun” starts.

Despite the fact that the case is initiated with a motion filed by the non-custodial parent, the burden of proof in a relocation case is actually on the custodial/relocating parent (as a note, I will continue to treat the relocating parent and custodial parent as interchangeable in this case because it is practically unheard of for there to be a contested relocation involving the non-custodial parent moving - at worst, there will just be a motion to alter that parent’s visitation).

Of course, the question is “burden to prove what?” The answer to that question, unfortunately, is that the Virginia courts still have not sorted this out, and unlike many other states, the Virginia legislature has not passed a law giving the courts guidelines for determining relocation rights. Instead, we have a mishmash of rules. The custodial parent must prove that the non-custodial parent’s relationship with the child will not be harmed by the relocation. However, if the custodial parent fails to prove that, but the custodial parent succeeds in proving that the relocation would be in the child’s best interest anyways, then the relocation may be approved regardless - but note that to prove this, the relocating parent needs to prove the that the move itself independently benefits the child. It's not enough to show that the move would benefit the parent and that benefit would then rub off on the child, or that the relocating parent is the better fit for the child - it must be proven the child will be better off in the new location than the old location despite any harm to that child's relationship with the other parent.

Further, if the custodial parent proves that the custodial parent cannot (perhaps for reasons of jobs, finance, threat to health, etc.) remain at the custodial parent’s current location and cannot move to a location that is closer than the proposed relocation point, then the court must do a whole different analysis of whether the child’s best interest is custody with the custodial parent at the new location or with the non-custodial parent.

If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with. The general rule (as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent's visitation will not have to be altered at all, then the relocation will probably be approved. If you cannot show that, the relocation probably will not be approved barring some other extraordinary circumstance. You should also be prepared to take on the burden of any additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.

My Relocation was Denied - Now What?

If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child. As discussed above, the non-custodial parent cannot stop you from moving. So, you would have several options. If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved. You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success). You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail). Those are pretty much your only options if your relocation is denied.

My Relocation was Approved, But Visitation Isn't Working

If your relocation was approved but it becomes clear that the visitation arrangements are no longer working, then you can file a motion to modify visitation. This is because the fact that visitation arrangements do not work as planned is usually considered a “material change in circumstances” that warrants re-consideration.

Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time. Just be prepared that a hearing like this can go either way. They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child. Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all. Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.

Conclusion

Relocation is one of the toughest issues there is involving custody. Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it. If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm. While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them. Your initial consultation will be free for up to half an hour!