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!

Wednesday, January 31, 2018

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

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

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

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

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

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

"Grandfather" Clause

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

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

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

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

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

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

Impact on Settlement

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

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

Impact on Child Support

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

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

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

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

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

Impact on Total Finances

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

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

Why 2018 May be the Year to Get Divorced

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

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

Conclusion

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

Friday, January 19, 2018

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

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

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

Introduction

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

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

Option 1 - Agreement

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

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

Option 2 - Court Order

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

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

Option 3 - Suck it up and Pay

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

Option 4 - Unilateral Non-payment

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

Conclusion

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

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.