Friday, July 3, 2020

Relevant Changes in Virginia Law - 2020 Edition

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!

Friday, March 20, 2020

Virginia Family Law in the Age of COVID-19

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.

Wednesday, May 22, 2019

Relevant Changes in Virginia Law - 2019 Edition

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.

Friday, December 28, 2018

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

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!"

Wednesday, June 13, 2018

Reconciling in Virginia - The Law When You Work Things Out

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!

Monday, April 23, 2018

Relevant Changes in Virginia Law - 2018 Edition

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.

Wednesday, February 14, 2018

A Warning to Virginia's Same-Sex Parents

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!