Friday, July 28, 2017

When Finding a Lawyer Be Careful What You Wish For

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.

Monday, April 17, 2017

Relevant Changes in Virginia Law - 2017 Edition

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!

Thursday, March 30, 2017

An Introduction to Family Law Appeals in Virginia

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).

Monday, January 16, 2017

A Chance to Change Virginia Law on Adultery

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.

Friday, October 21, 2016

Update on Blog Status

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.

Friday, September 23, 2016

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

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!

Friday, August 26, 2016

Interstate Child Support - Virginia Law

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:
  1. If one state has jurisdiction over both parents and the other doesn't, then the one having jurisdiction gets to make the initial order.
  2. 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.
  3. 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!