Sleeping with the Enemy - Sex, Cohabitation, and Pre-Divorce Separation

As always, before reading my post, please review my disclaimer by following the link on the top of the page or clicking on this link.

Introduction

Most people getting a divorce in Virginia understand that if they want to obtain a no-fault divorce they have to be separated for a minimum period of time - a year for most couples, but 6 months if there are no children and there is a signed property settlement agreement which resolves all issues.  When the time comes to finalize the divorce, you will sign an affidavit, testify in a deposition, or testify in court, and amongst the things you will have to swear is that you and your spouse "have lived separate and apart without cohabitation and without interruption" for the required period of time.  While that may seem simple enough, six months or a year can be a long time, and many things can happen.  A surprising number of questions might arise as to what "without cohabitation" and "without interruption" means.  I hope to address some of those questions in this blog post.

The One Night Stand

Perhaps the most common source of questions I have seen while practicing law in this field comes from an issue that might shock many people.  It usually starts with a sheepish, half-embarrassed build-up, until finally the client blurts the question out.  "My spouse and I had sex last night, we still want to get divorced, but do we have to start the whole separation clock over again?"

So, perhaps I should back up a bit.  Post-separation sex with your spouse is a minefield of potential issues.  If you were to come to me beforehand and ask if I thought it was a good idea, my advice would be no, it's not.  First of all, if you are thinking about having sex with your spouse from whom you are separated, perhaps you should take this as a sign that one of the other statements you will have to swear to in your divorce, that "there is no hope of reconciliation," may not be true.  If you are that interested, maybe you should take it as a sign that you should be talking to a marriage counselor instead of a divorce attorney.

But, perhaps the biggest reason I would advise against it is that it makes you vulnerable to accusations.  Specifically, there is a long history in Virginia, where "marital rape" remained legal for a very long time, of husbands insisting that, prior to an actual divorce, the husband could have sex with his wife whenever he wanted to, and then forcing the issue.  This has created a, I would suggest deserved, perception within the legal community that post-separation sex has a heightened chance of being non-consensual.  If your spouse has been particularly vengeful during the course of your divorce so far, a false rape allegation is certainly not inconceivable - and it would be very hard to disprove.  Moreover, depending on the nature of your separation, you could find yourself in a situation where those hormones start raging, then they mix with some anger you may have over the separation, and suddenly you are unwilling to take no for an answer.  Then you actually do end up raping your spouse, and if you rape your spouse, you have committed a felony and there is little help your divorce attorney can provide you.

So, now that I've given my spiel about why, if you want to have sex with your estranged spouse, you shouldn't do it but should go see a marriage counselor and maybe give reconciliation a shot, I'll get back to the question that started this section.  If you ignore all my advice here, and have sex with your spouse, but still want to get divorced, what does it mean for your separation?

Well, unless you are in an arranged marriage (and, depending on the tradition, sometimes even then), you probably had feelings for your spouse at one point in time - you did marry him/her after all.  It's not entirely unreasonable or unnatural that, in a moment of emotional weakness, you may find yourself giving in to a romantic evening and a passionate night.  The fact is, the courts recognize this, and one night of sex with your spouse is not considered "cohabitation" or an "interruption" in the separation.  As a result, barring an unusual circumstance (or, this being the 10th "one night only" with your spouse of the separation), having sex with your spouse once will probably not restart the clock and delay your divorce.  Again, however, do think twice before you do it.

The Weekend Retreat

Ok, so if one night of sex doesn't delay the divorce, what about a weekend together.  The question usually comes in the form of "My parents convinced me and my spouse to spend a weekend together at a couples retreat hosted by our church to try to patch things up.  It didn't work, but we stayed in the same room together the whole weekend.  Does the separation start over?"  The other form I hear can be "I had a rough week at work, my spouse has the kids for the weekend, and we all thought it would be nice if we could spend the weekend as a family, so I stayed at my spouse's house for the weekend, and we shared a bed.  Does the separation start over?"

This question starts to get trickier, since this sounds like an "interruption" to the period of separation, doesn't it?  Well, the courts long ago concluded, I think correctly, that the public policy of the Commonwealth of Virginia is to encourage as many marriages to stay together as possible.  As a result, the courts decided that the General Assembly when enacting the divorce laws likely did not mean to "punish" couples who make an effort to work things out.  As a result, the courts came up with the idea of a "trial reconciliation."  A trial reconciliation is basically a brief period of living together in which you try to patch things up.  The rule, then, is that a trial reconciliation, legally speaking, is neither "cohabitation" nor an "interruption."  As a result, if the trial reconciliation doesn't work out, the clock does not restart.

Now, there is no hard and fast rule to how long a trial reconciliation can be before it becomes an actual reconciliation (which does count as "cohabitation" or an "interruption).  What I have seen most often is that a weekend is just a trial reconciliation, while longer than a week is treated as a full reconciliation.  The time in the middle can be a toss-up.  A weekend together, however, likely will not get you in trouble.

Sleeping on the Couch

So, we've covered two of the three most common "interruptions" to separation periods that don't actually count as an interruption, and now I want to touch on the third.  This inquiry usually comes in one of two ways.  "While my spouse and I were separated, I bought a house, but my lease ran out a month before settlement.  My spouse agreed to let me crash on the couch has their place for that month.  Did this break the separation?"  More commonly, however, I get this inquiry "We can't afford separate places until our home is sold, but we don't want to hold off our divorce that long.  Does it count as a separation if I move to the basement?"

The Code actually only uses the phrase living "separate and apart."  Nothing in the law requires that you live "separate and apart" in different buildings.  The courts have long recognized the concept of "separation under the same roof."  You can actually live in the same house the whole separation period if you want.  You just can't "cohabitate as husband and wife," and you'll need to have someone who comes over often who can testify to the fact that you haven't been cohabitating.

The test I see used most often to see if you are cohabitating, or actually separated, is usually by asking the following questions:

1. Are you sleeping in the same room?
2. Are either of you cooking meals for the other?
3. Are either of you doing the other's laundry?
4. Are either of you sharing parts of the house at the same time?
5. Are either of you cleaning up after the other in "their" part of the house?
6. Are you having meals together?

If you can answer "no" to all six of those questions, you will usually be found to have been separated under the same roof, and the separation period continues as normal.  Answering yes to even one may cause problems, however, so you should be careful if you are trying to live separately under the same roof.

Conclusion

Even though at the time of divorce you will swear that you have lived separate and apart "without cohabitation" and "without interruption," there are plenty of interruptions that typically don't "count" under the law.  A one night stand with your spouse, spending a weekend together, or living separately but in the same home all qualify in this area.  As usual, however, a single blog post cannot cover all possibilities.  If you are in the process of a divorce, but want to make sure you're not breaking the separation, your best advice is to contact an attorney.  If you are in the Northern Virginia area, you should feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up a consultation with me.  The initial consultation is free for up to half an hour.

What to Do When Dad's Sending His Money to a Nigerian Prince - Guardianship/Conservatorship Basics

As always, prior to reading this blog post, please review my disclaimer by following the link above or by clicking on this link.  As always, the legal aspects of the post are relevant only to the Commonwealth of Virginia.

Introduction

It's the point in time that just about every child dreads.  That point when mom or dad (or both) gets too old, is hit with a smattering of dementia, and suddenly starts making ridiculous decisions.  Maybe they've stopped paying their bills (usually because they've forgotten about them), or they won't go to the doctor because "they're all quacks."  Maybe they've been caught in an international scam, and are spending all their money convinced that "this is the last check before my payday."

Regardless of what your parents are doing, this is a very hard time for any child.  You want to help them, and you don't want to hurt their feelings, but you just don't know what to do.  You've tried talking to them, but that hasn't helped.  You've tried offering to step in and help, but they've refused.  You're at the end of your rope, you don't know what to do, but you do know that you can't let them go on like this.

The answer is a guardianship and/or conservatorship.  This is a legal process by which you can take some of these decisions away from your parents and give them to someone who will act in their best interests (possibly even you).  And by the way, guardianships and conservatorships aren't just for elderly parents.  Your adult child is repeatedly attempting suicide but refusing to seek help?  Your brother or sister suffers from mental retardation and cannot remember to pay their bills?  Your elderly neighbor is being taken advantage of by his children?  The fact is, in Virginia anyone can file for a guardianship or conservatorship on behalf of anyone else - just make sure you're doing it for the right reasons, and that you have some actual evidence that such a thing is necessary.

Guardianship vs. Conservatorship vs. Both

Before taking action, however, you need to decide what you want to pursue.  Do you want a guardianship, do you want a conservatorship, or do you want both?  If granted, a guardianship gives you control over the person, while a conservatorship gives you control over the person's assets.  As a result, if you have a guardianship but not a conservatorship, you can force your ward to see a doctor, but you can't force him or her to pay their bills.  Similarly, if you have a conservatorship but not a guardianship, you can pay the bills for them, but you cannot make them do anything.

So, why would you want one versus the other, and not always want both?  Well, pursuing both is pretty much double the legal paperwork, and if one is not really necessary, it will save you time and money not to pursue both, and for the person you are helping, there is psychological value to retaining some autonomy over his or her life.  So, if the potential ward is still fine with handling his or her money, but won't take care of him or herself, then a guardianship alone might be worthwhile.  If the potential ward cannot handle their money, but can certainly make good decisions for him or herself, then just a conservatorship may be the way to go.  If you can't trust the person with either, however, then both is probably the right path for you.

The Process

As you might imagine, you cannot just show up one day and declare yourself the guardian and/or conservator of a person.  You must go through the court.  This requires filing a petition for guardianship and/or conservatorship.  Once that is done, the court will order the appointment of a "Guardian ad Litem."  The Guardian ad Litem is an attorney who will act on the potential ward's behalf, but will make his or her own determination, after meeting with the individual and anyone with potential information as to what "acting on their behalf" actually entails.  In other words, a Guardian ad Litem may very well support the petition, even if the potential ward personally opposes it.  As a result, the potential ward may also hire his or her own attorney to represent him or her in the proceedings.

If the guardianship or conservatorship is uncontested (as in, the Guardian ad Litem agrees with it, and the potential ward either also agrees or does not mount a defense), the process is fairly simple.  After the Guardian ad Litem's supportive report is issued, a guardian and/or conservator will be appointed with a set of powers as delineated in the Virginia Code.

If it is contested (the Guardian ad Litem opposes it, or the ward opposes it and mounts an opposition), a trial will be held, and it can be either a bench trial, or a jury trial.  At that point, you must prove by "clear and convincing" evidence (so, more convincing than just 50% + 1, but less than "beyond a reasonable doubt") that the person cannot make the relevant decisions for him or herself.

In either case, if the guardianship and/or conservatorship is granted, the next step is to appoint the guardian and/or conservator.  Of course, this can be litigated as well.  If you are related to the person, and can show that you would not be likely to engage in "self-dealing" (as in, treating your conservatorship as an advance on your inheritance and spending it on yourself, or putting your own interests above your ward's while acting in your official capacity), you may very well be appointed.  If no relative is appointed, however, a law firm will often be appointed.  It is best to avoid this if at all possible, since law firms are very expensive when serving in this capacity.

This Process Sounds Terrible!  How Can I Protect My Children From It?

A contested guardianship and/or conservatorship process can be absolutely terrible on families.  Even an uncontested one can be very expensive.  If you want to protect your children from ever having to do this to you, there is a solution.

You can draft either a "durable" or a "springing, durable" general power of attorney.  In this document, you can lay out all the powers you are giving your child (or spouse, or both, or whomever you wish to give it to), and you can cover all of the guardianship and conservatorship clauses.  If it is not "springing," this power goes into effect immediately, and the person you appoint can act on it even while you are not incapacitated.  This is worth doing if you a) really trust the person you are appointing, and b) don't feel like dealing with some of the things you list anymore, even if you are capable.  If it is "springing," this means it only goes into effect once you are incapacitated, and you can set the terms for how you are deemed to be "incapacitated" (two doctors agreeing on this, for example).

Certainly, this can still ultimately cause litigation and heartache.  In the end, however, it is resolved much more simply, and usually more cheaply, than a guardianship/conservatorship battle - and usually without all the hurt feelings to boot.  However, usually these powers of attorney do prevent litigation altogether, since usually the potential appointee will not seek to use the power until you actually are incapacitated, and at that point there's a good chance you won't fight back.  In that case, this is definitely a much cheaper and easier option than even an uncontested guardianship/conservatorship petition.

Conclusion

If you are concerned that someone you know is no longer able to take care of him or herself, or handle his or her finances, a guardianship and/or conservatorship may be the way to go.  If you don't want anyone to ever have to deal with that, however, drafting a power of attorney now is your best solution.  If you are considering pursuing a guardianship or conservatorship, defending against a frivolous appointment of a guardian or conservator, or drafting a power of attorney, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  I do not handle these matters, but other attorneys in the firm I work for do, and your initial consultation is free for up to half an hour.

Your Lawyer Is Not Your Bodyguard - Call the Police First

As always, please review my blog’s disclaimer before reading this post by following the link at the top of the page or by clicking on this link.

Introduction

Say you are engaged in a dispute with a former friend.  One day, after a particularly nasty argument, that former friend shows up at your door, starts breaking it in, and is making verbal threats to kill you.  Who's the first person you call?  If you said "the police," then good, that's the answer that most people give, and it's the right answer.

But, let's change the scenario a little bit.  Let's say the dispute is a legal disagreement.  Maybe the "former friend" is the other parent of your child, and your dispute is over child support, or even more commonly, custody.  Let's say the dispute is already in court, and you have an attorney representing you.  Now who's the first person you call?  If you said "the police," then good, that's the right answer.  Unfortunately, far too often the reaction then seems to be "my lawyer," and in some cases, that's a mistake that can be fatal.

The reality is that litigation is a very frightening thing for a lot of people.  It changes the way we think about even the most basic parts of life.  When you have a particularly hotly contested case, this is especially true.  For some people, litigation can make them snap - engage in conduct, even violence, that they would not normally engage in.  For others, it makes them question every action they take.  Instead of asking "how will this affect me?" they ask "how will this affect my case?"  If you have a person facing each of these issues on different sides in a case, you have a potential powder keg waiting to blow up, and it is important that you be prepared to protect yourself.

With this blog post, I hope to cover some basics of when your attorney should not be the first person you call.

Limitations on an Attorney

I've been surprised while practicing law to learn how many people think attorneys have the power to arrest someone, take out a warrant against them, or otherwise take immediate physical action against someone - that we essentially have police powers.  Let me be clear - we do not.  If you ever hear someone say "her lawyer got me sent to jail," the person probably means through a contempt of court proceeding, that's about the closest we come.

Lawyers dispense legal advice and represent clients' interests in a courtroom.  That's about it.  We cannot arrest people, and calling us does not get you some special line to the police.  If you are in a police situation, all your attorney is going to be able to do is tell you to hang up and call the police, or your attorney might hang up and call 911 him or herself.

When to Call the Police

If you are in imminent danger, call the police, no matter what.  Don't worry about the effect it will have on your case, don't worry about how it might "look" to others, just call the police.  Imminent danger doesn't just mean the person's knocking on your door with a gun either.  Maybe they've just sent you a threatening message.  Anything that makes you feel like your life is in danger in the immediate future, your first call needs to be to the police.

The same extends to your children.  I find parents in custody disputes especially hesitant to call the police if they believe their children are in danger while with the other parent.  Police routinely perform "wellness checks" during a parent's visitation at the other parent's request, and as long as it's not a habit, it should not hurt your case.

If you take only one thing away from this post let it be this:  If a life is in danger, call the police first, you can call your lawyer later.

What Happens Afterwards

Now, since many of you may still be scared of the thought of calling the police first, I do want to discuss what happens afterwards if you do call the police.

In some cases, if your life turns out to have actually not been in danger, you may have to explain your actions to a judge.  Believe me, however, I would much rather be explaining to a judge why you called the police than be serving as a witness in your opponent's murder trial.  I believe most other attorneys would agree with me.  If you had an articulable reason for believing yourself or your children to be in danger, however, then there should be no impact on that case.

Further, if there was a real threat, then I would advise pursuing a protective order.  A protective order (known as a restraining order in many other states) allows you to call the police if the other person even approaches you in a non-threatening manner - it adds an extra layer of safety.  Even better, a protective order prohibits the other person from having a firearm, making it harder for him or her to harm you.

Conclusion

As tempting as it may be, if you are in a situation where your life, or the life of someone else, is in danger, your first phone call should be to the police, not your lawyer.  After the dust settles, your lawyer can help clear up any mess that it may have caused - but that's much better than your lawyer helping find someone to claim your body.  If you are in a situation where you feel a protective order might be warranted or you are otherwise concerned about your safety with regards to your legal matter, but your life is not in immediate danger (because if it is, CALL THE POLICE), please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up an appointment.  Your initial consultation is free for up to half an hour.

VRLTA or Not VRLTA: Your Lease and the Law

As always, before reading this post I encourage you to review my disclaimer by clicking on the link at the top of the page, or by following this link.

UPDATE:  I have now received multiple inquiries from potential new clients due to their having read this particular blog post, but upon further discussion it is clear that they have read no other posts, and made critical mistakes that harm their case.  If you are having a landlord/tenant dispute and after reading this post you want to consider using me as your attorney, please also read this post which discusses some very important rules about things you can and cannot do when you are involved in a dispute with your landlord (you cannot stop paying rent, or decrease your rent) or your tenant (you cannot change the locks).

UPDATE #2:  Please note that, effective July 1, 2014, one or more statements made in this blog post will no longer be accurate due to changes in the law.  Please see my blog post of April 24, 2014 for details.

Update (4/27/18):  Please note that some of the information contained in this post is now outdated due to changes in the law.  Please see my 2018 Relevant Changes in the Law post for details.

Introduction

At some point or another, the vast majority of us are going to live in a home or apartment that we have rented.  Be it off-campus housing in college, our first home when we start working, or longer-term housing, almost everyone rents at some point in time.  When we rent, we do so under a contract known as a lease.  A lease can be written, oral, or implied, but a lease does exist in every rental situation whether you know it or not.  Most leases, however, are written, and you should be very hesitant about entering into any rental arrangement without having a written lease.

A lease is a very important contract, and affects your rights dramatically.  Moreover, leases can be very long, very confusing, and perhaps most importantly, it is entirely possible that you will have a lease which has provisions that are actually not legally applicable.  As a result, it is important to not only read your lease thoroughly, but to also know the law before you sign your lease.  Unfortunately, few people take both of these steps.  Leases are frequently written to benefit the landlord, and there is nothing illegal about writing invalid provisions into a lease - as a result, many landlords do this to discourage tenants from protecting their rights.

Landlord/tenant law, especially in Virginia, is a very complex topic, and I would be foolish to try to cover it all in one blog post (or even two, three or four posts).  As a result, my goals with this post are much more limited.  Specifically, I hope to help you identify which laws apply to your lease and which don't and how that affects your rights.  I will do future posts covering related matters.

VRLTA vs. Common Law/Title 55 - Chapter 13

Chapter 13.2 of Title 55 of the Code of Virginia is called the Virginia Residential Landlord and Tenant Act (or VRLTA), which was passed in 1974 in order to simplify some elements of residential rentals.  Many people mistakenly believe that VRLTA's purpose was to protect tenants.  While it is true that VRLTA has many protections built in for tenants that did not exist prior to VRLTA's implementation, there are also actually a number of provisions that make it easier for a landlord to evict tenants as well.  VRLTA really just streamlines and simplifies landlord/tenant disputes - it does not particularly favor one side or the other.

VRLTA does not apply to all leases, however.  Specifically, leases are not covered by VRLTA in the following situations:

• residence at a public or private "institution" (college dorms, prison, hospital, old age home, etc.) when residence there is due to "detention or the provision of medical, geriatric, educational, counseling, religious or similar services"
• occupancy in a home that the tenant has purchased prior to the settlement on the sale of the home
• residence in a sorority or fraternity house by a member of that sorority or fraternity
• occupancy in a motel, hotel, vacation cottage, etc. unless leased for more than 30 straight days to the same person
• occupancy by the landlord's employee (or ex-employee for up to 60 days after the end of employment) when the right to occupancy is conditioned on continued employment
• occupancy by the owner of a condominium unit or the owner of a proprietary lease in a cooperative
• occupancy where the rented unit is to be used primarily for business, commercial or agricultural purposes
• occupancy in a public housing unit governed by HUD regulations wherever HUD regulations conflict with VRLTA
• occupancy by a tenant who pays no rent
• occupancy in a single-family residence where the owner is a natural person (so, not a corporation, LLC, etc.) who owns in his or her own name no more than ten single-family residences subject to a rental agreement; or in the case of condominium units or single-family residences located in any city or in any county having either the urban county executive form or county manager plan of government, no more than four

I have bolded the last two because those are the cases I see most often, so this needs to be clear.  If you pay no rent (so, say, you are an adult and your parents are letting you stay with them for free) the VRLTA does not apply to your situation.

The last provision is confusing, so let me spell it out a little more clearly.  Basically, if you are renting from a person (not a corporation, LLC, etc.), the VRLTA does not apply unless:

• that person owns eleven or more single-family residences that he or she is also renting out,
• that person owns five or more single-family residences that he or she is also renting out within a single city,
• that person owns five or more single-family residences that he or she is also renting out within a single county that has the urban county executive form of government (the only county I am aware of in Virginia with this is Fairfax County, but there may be more), OR
• that person owns five or more single-family residences that he or she is also renting out within a single county that has the county manager plan of government (I am only aware of Arlington County fitting into this category, but again, there may bemore).

So, unless one of those four situations applies, if you rent from a person, the VRLTA does not apply.

Why it Matters

If the VRLTA does not apply, then you are subject to the Common Law (law made by judges over the centuries), as altered by Chapter 13 of Title 55 of the Code of Virginia.  The reason this matters is that the two sets of laws are very different.  Perhaps the most important difference, however, is that VRLTA has section 55-248.9.  That section prohibits certain provisions from being in a lease, and amongst those provisions is any provision in which the tenant waives any of his or her rights under the VRLTA.  Chapter 13 of Title 55 has no equivalent provision.  In other words, unless the specific code provision says otherwise, any provision of Chapter 13 of Title 55 can be waived by the lease.

I cannot count the number of times I have had someone come running to me with something horrible their landlord has done.  I will find where the landlord has no responsibility for this in the lease, the tenant will show me the provision of the law that gives the landlord responsibility, and I will have to explain that, since it's not a VRLTA lease, the lease provision actually wins.  Or, I will have someone with a non-VRLTA lease who found a great legal provision in the VRLTA.  So, as a general rule, if you are researching Virginia landlord/tenant law and you find a provision, check out the section number.  If it is section number 55-248.x or 55-248.xx, you are reading a VRLTA provision.  If it is between 55-217 and 55-248 (no decimal point), it is a Chapter 13 provision (but again, remember, unless that provision says otherwise, that provision is waivable in the lease).

Exception

Now, there is one big exception to all that I have laid out above.  There is a way to make your non-VRLTA lease into a VRLTA lease, and thus open up all of the VRLTA options to you.  Section 55-248.5(B) specifically allows the lease itself to declare that it is to be governed by VRLTA, even if the rental situation is one that fits into one of the categories that would normally be excluded from VRLTA coverage.  If you would prefer to have your lease governed by the VRLTA, you can ask for such a provision, and if included in the lease, the VRLTA would apply.  Just remember, the VRLTA is a double-edged sword - it provides additional protections for tenants, but also provides additional protections for landlords as well.

How to find the Law

So, now that you know which law applies to your lease, you might wonder how you find that law.  The simplest way without following links on the blog is to go to a search engine, search for "Code of Virginia," go to the Table of Contents, then click on Title 55, then click on either Chapter 13 or Chapter 13.2 for whichever applies to your lease.  For simplicity, however, you can click on my links here to find Chapter 13 or the VRLTA.

Conclusion

As I stated at the beginning, leases are a major topic.  Look at how long this blog post is, and all that I've done is help you figure out which laws apply to your lease!  If you would like to have an attorney review your lease before you sign it, or answer your questions about the law and its applicability to your lease (and what it really means to you), or if you are engaged in a landlord/tenant dispute now and would like an attorney to assist you, please feel free to call (703)281-0134 or e-mail SLeven@thebaldwinlawfirm.com to set up an initial consultation with me - the consultation is free for up to half an hour!

Lawyering Up: A Primer on Fee Agreements

As always, before reading this post I encourage you to review my disclaimer by clicking on the link at the top of the page, or by following this link.  As always, the legal content of this post is applicable only to the Commonwealth of Virginia.

Introduction

As this blog develops, most of my posts are going to conclude with the notion that a) my blog is only providing general information that may or may not be applicable to your specific issue, b) no blog post can answer all of your questions about your legal issue, and therefore c) you should consult with an attorney before taking any action (or deciding to take no action).  It occurs to me, however, that the process of consulting with an attorney is, itself, no simple task.  Beyond the fact that finding an attorney is not always easy is that once you do find an attorney you can will likely find yourself going through an array of questions about how you will do what people with an attorney dread most:  pay your legal fees.

Most attorneys will require you to sign a fee agreement laying out your fee structure (and if the attorney you are speaking with does not insist on such a thing, you should, as fee agreements protect both the attorney and you).  A fee agreement is a contract, and like any other contract, it deserves your close scrutiny.  Most importantly, if there is something in the fee agreement you don't like, do not sign it.  Fee agreements can be changed, and just because an attorney hands you one doesn't mean you are forced to accept it as is or look elsewhere.  Fee agreements are usually somewhat negotiable, and you should not be afraid to ask for changes that you feel are necessary to make the agreement one you are comfortable with.

So, the key takeaway is that you should read your fee agreement closely.  Most attorneys, contrary to our unfortunate reputation, are honest people trying to make an honest living.  This means that most attorneys are being honest, not trying to deceive you, when verbally summarizing a fee agreement to you.  However, like any person, we can make mistakes, and your review of the fee agreement is critical to catch those mistakes.  Remember, a written contract is only enforceable as written, so if you sign it believing that it says something other than what it does, not only will the actual writing be enforced, your beliefs might not even be admissible in court if there is a dispute later.  Moreover, you can take the agreement home with you to scrutinize it.  No attorney is going to say "You must hire me today or I won't represent you."  After all, this is how we make our living.  Are we really going to turn down a paying client just because you took a couple days to retain us?

Finally, my general advice when reviewing a contract in other situations is that you should consider going over it with an attorney.  If you are going to be hiring an attorney for a long-term, high-priced matter, this may not be a bad idea with a fee agreement either.  The problem is, if you do that you will have to have a fee agreement with that attorney.  In other words, at least somewhere along the line, you will have to sign a fee agreement without the input of an independent attorney, and I am hopeful that this blog post can give you some basic idea of what to look for when you are reviewing a fee agreement.

Flat Fee vs. Hourly Rate vs. Contingency Fee

The first question to ask is, are you hiring the attorney to represent you on a flat fee basis, an hourly rate basis, or a contingency basis?  If flat fee (as in, you pay one amount to cover your entire case no matter how much time the attorney puts in) then the amount you are paying should be clearly stated.  Further nothing in the agreement should say anything about a rate "per hour," unless there is a clause specifically delineating the situation in which such an hourly rate would kick in (for example, if an uncontested case suddenly became contested).  Further, if the flat fee agreement does contain an hourly rate clause, that clause should require the attorney to tell you in advance before the hourly rate starts to be charged, and give you a reasonable opportunity to reject the attorney's services after that change.

Contingency fees are typically the most popular fee arrangement amongst clients (for obvious reasons), but also can be the most fraught with perils.  Under rules of legal ethics, contingency fees are only available when you are seeking money from another person or company, and even in that realm there are situations where they are not available (for example, if you are seeking a monthly child support award, an attorney may not represent you on a contingency basis).  If you are hiring an attorney on a contingent fee basis, the agreement should clearly delineate a) the contingencies that must occur for your attorney to collect his or her fee, b) the percentage that goes to your attorney, c) whether you must cover expenses up front or if that is part of the contingency - and how the expenses are to be paid, and d) an opportunity for you to decline the incurring of any expense as a part of your case.  Moreover, there should be no reference to any rate "per hour" unless it is to provide a baseline for the attorney above which the attorney cannot collect (for example, it's ok for a fee agreement to say something like "the attorney shall receive 33% of whatever money the attorney collects on the client's behalf unless that amount is greater than the attorney's hourly rate of $x times the number of hours the attorney worked on the client's behalf").  In other words, if the hourly rate is there to potentially reduce the attorney's fee, then it is ok.

Finally, if you are hiring an attorney at an hourly rate (this is the majority of fee agreements), the agreement should clearly delineate a) the amount of the retainer or fee deposit, b) the hourly rate of all attorneys, legal assistants, etc. who might work on your case, and c) a basic schedule of when you receive bills and how much you need to pay on your bill when you receive it (some require you to only pay the outstanding balance, some require you to replenish your fee deposit, etc.).

Fee Deposit vs. Retainer

If, like most people who hire attorneys, you are hiring an attorney on an hourly basis, you will likely be asked to pay either a "retainer" or a "fee deposit".  Most people and lawyers use the two terms interchangeably (I will confess I am guilty of this sometimes), primarily because most people are simply used to the term "retainer."  The two terms are actually not interchangeable, however.

A "retainer" is a one-time payment made to your attorney that buys access to your attorney.  It's like a cover charge at a bar - you pay it up front to get you in the door, but then you still have to pay for each actual drink.  It's non-refundable, even if you never use the attorney's services, and it does not pre-pay for any of the attorney's services (in other words, if your attorney has an hourly rate of $450, a retainer of $1,000, and he does two hours of work for you, you'll end up paying $1,900).  Despite the commonality of the term, most attorneys I know do not charge retainers, but enough do that it is worth keeping an eye out - and depending on the quality of the attorney and the services offered, an attorney should not necessarily be rejected just because he or she charges a retainer.

A "fee deposit" is exactly what it sounds like.  It is a pre-payment of a certain amount of an attorney's time, and usually all, or at least some, of the deposit is refundable if you do not use that much of the attorney's time.  Most attorneys I know charge a fee deposit, frequently for anywhere between 5-20 hours of our hourly rate.  So, using the same example as the last paragraph, if you hire an attorney whose hourly rate is $450, charges a fee deposit of $1,000, and does two hours of work for you, you'll come away in the end having paid a total of $900, and you will get $100 of your fee deposit refunded to you.

Unfortunately, because of the perceived interchangeability of the terms, you cannot always tell if you are dealing with a fee deposit or a retainer just by the term used in the agreement.  You must read how it operates.  Does the contract say the retainer or deposit goes into a trust account?  If so, it's probably a fee deposit, if not, it's probably a retainer.  Does the contract say that the hours are, at first, billed against the trust account?  Again, if so, it's probably a fee deposit, if not, it's probably a retainer.  If it is unclear to you what the agreement calls for, don't be afraid to let the attorney know that you would like the fee agreement to be clearer on this matter.  Some fee deposits and retainers are pretty large (I use a fee deposit with my clients, and in rare instances I have asked for deposits as high as $5,000 before), so this is very important to get right.

Escape Clause

Your legal issue belongs to you, not to the attorney you hire.  As a result, every fee agreement absolutely must have a clause allowing you to fire your attorney, terminate the contract, and end the attorney-client relationship at any time you want to, without cause.  If you do this, you should only be responsible for costs accrued up to the date of this decision, and some very limited costs possibly accrued in getting your file returned to you or sent to your new attorney.  Further, if you are on a flat fee or contingent fee basis, the clause allowing you to terminate the contract should make clear what portion, if any, of the flat fee you get back depending on what stage you are in, or how much of any collection the contingent fee lawyer might still be entitled to depending on what stage you are in.

This clause is not optional, and you absolutely should not sign a fee agreement that lacks one.

Interest and Collections

The sad reality is that in our profession, as in most professions, some clients simply decide not to pay.  Then we find ourselves having to sue them to collect on their past due bills.  Many attorneys will write a clause into their fee agreement that protects them from some of the damage this causes.   This clause will usually charge interest and also allow for a penalty to be imposed for having to file suit (usually by adding a certain percentage to the outstanding bill).  Even if you absolutely intend to pay your bill in full, read these clauses carefully as you could end up paying some interest if you find the case gets more expensive than you expected and you cannot pay off the account all at once.  Like any provision of fee agreements, these provisions usually are negotiable, and you can ask the attorney to change them if you want to.  Another approach could be to ask that the agreement state that you will not be charged interest in any month in which you pay at least a minimum amount (say, $1,000).  The worst that will happen is the attorney says no.

Conclusion

Like all contracts, the fee agreement establishing your relationship with your attorney is a critically important contract, and deserves close scrutiny.  It is easy to fall into traps of language you might not understand, and while I hope I have provided some basic knowledge here, it is, as always, not possible to cover every situation in a single blog post.  If you are considering hiring an attorney and would like an independent attorney to review your fee agreement, please feel free to set up an appointment with me by calling (703)281-0134 or e-mailing SLeven@thebaldwinlawfirm.com.  Your initial consultation is free for up to half an hour, and I do actual reviews of potential contracts for a flat fee.

If Your Spouse Says "Get Out" You Should Say "No"

Welcome to my legal blog.  If you want to learn about the blog itself, please click on "About this Blog" on the top.  Before you read, I always advise that you review my disclaimer, which you can do by clicking at the link on the top of the page, or following this link.

Introduction

We've all seen it on TV - the definitive moment a marriage has broken down - the husband comes home from work one day (it seems to always be the husband on TV) only to find his bags packed and sitting outside the door with a note from his wife telling him to leave and never come back.  The reality, however, is that situations like this occur more often than we realize (and it is certainly not always the husband on the receiving end), and most people, not understanding their rights, simply go along with it.

I long ago determined that one of my missions in life is to disabuse people of the notion that if your spouse says "get out," you have to do so.  In fact, this point is so important that not only will this be my first blog post, but I will probably repeat this post again a few times in the future.

The Law

The reality is that in Virginia, if you are married, both spouses have equal rights to the marital residence.  Your spouse is the only one with their name on the title?  Doesn't matter.  The house was purchased by your spouse before you got married?  Doesn't matter.  If this house is the home that you last lived in as husband and wife prior to a separation, you are allowed to stay there no matter what the title says or when the home was purchased.  Your spouse can threaten to call the police all that he or she wants, you are not tresspassing, you will not be taken away.

What You Should Do

If your spouse tells you to get out, your answer should be "no."  That's it.  No ifs, ands or buts.  The reality is, if you want any chance of being awarded the house in a future divorce action, you need to be the one who stayed in the house.  I don't care how angry the other spouse gets - do not leave the house just because your spouse says so.

This actually goes a step further.  If you have to leave temporarily for whatever reason, and your spouse changes the locks, you are within your rights to break in.  You can change the locks back if you wish, or change the locks to keep your spouse out.  As long as you retain your right to the property, your spouse just cannot kick you out.

Exceptions

As with any legal rule, however, there are exceptions.  There are three situations I can think of in which you do have to leave the house:

1)  A court order - While most judges will resist ordering one party or the other to leave, some will issue that order early on in a divorce process.  Moreover, if you stay in the house through the final divorce decree, and then the court awards the house to your spouse, you will then have to leave the house.

2)  You assault your spouse - If you assault your spouse, game over.  Once you are arrested, or a protective order is entered against you, you must leave the house, and you will likely be unable to approach your spouse for some time.

3)  You fear for your own safety - If you fear for your safety but don't think you can get a protective order against your spouse, it is probably worth leaving.  While you can raise this argument to try to keep your house in a future negotiation or divorce case, even if that argument fails is a piece of property really worth your life?  If you are concerned about your own safety if you remain in the house, then I do recommend going ahead and leaving.

Children

As with any situation in a marriage break-up, the presence of children adds an additional complicating factor.  Just because you and your spouse are breaking up does not mean your children should have be hoisted from their home and have their lives ruined.  If you want custody of your children, then you absolutely better make sure you stay in the home with them.  If you agree your spouse should have custody, then this would be a fourth exception - you should probably be the one who leaves.  Finally, if you are leaving because of the third exception above (that you fear for your safety), are you really sure it's safe to leave your children with your spouse?  In that case, I recommend bringing the children with you.

Remember, no parent has default custody in Virginia, and unless there is a court order to the contrary, either parent may bring the children with them wherever they want to go, whenever they want to go.  Just know that disappearing without telling your spouse where you have gone, and then withholding the children from your spouse, can very easily lead to an emergency custody order that you may not like - so be reasonable as best you can.

Closing Remarks

A single blog post cannot cover all situations that may arise.  As a result, if your marriage is breaking down and your spouse is telling you to get out, I would advise you to consult with an attorney.  Obviously I would love to offer my own services, and those of the firm I work for, The Baldwin Law Firm, but if you have an attorney you prefer, you can certainly see them.  If you would like to set up a consultation with us, you should call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com.  Your initial consultation with us will be free for up to 30 minutes.