Legal FAQ Part III

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

Introduction

In the past, I've done FAQ's when I've had writer's block or when I wanted to introduce a new concept to the blog.  Today, I'm doing it because I have had several ideas for posts to put together, and realized that all of them are too short to really warrant their own full blog post - so they worked better as FAQ's.  As always, the format will be simple - I'll pose a question in bold, usually one I am asked a lot, and then I will attempt to answer it in the paragraph that follows.  At the end, I'll ask you to submit any questions you may have for future FAQ's.

If I'm involved in a lawsuit but have a lawyer, when do I actually need to take off work and come to court?

Note:  This question was sent to me by a reader in response to my ask the lawyer blog post.

This is actually a very common question I get asked when representing clients.  The answer is two-fold.  First and foremost, you need to be in court any time there's a hearing in which your testimony will be needed.  This means if the hearing is about a factual issue (as opposed to the facts not being in dispute, but there being a legal issue) there's a good chance you need to be there.  Second, if there's a hearing where you not being there might look to the judge like you don't care about the case, you should be there.  For both of these reasons, however, your lawyer is likely to know what's needed and should be able to advise you.  In my experience, hearings other than the trial in which testimony is taken are rare.  Pendente Lite hearings in family law cases, hearings on a Plea in Bar, and hearings on matters that will take more than 30 minutes to be heard tend to be the only ones I can think of - but again, for your case, your lawyer will know.  For the second, this is pretty much only at trial.  In a civil lawsuit, if you have a lawyer, there is no requirement that you actually attend your trial (unless you have been served with a subpoena).  Nonetheless, even if you don't plan to testify, failure to be there will usually look bad to a judge unless you have a good reason.

While every case is different so I cannot speak to the facts of your particular case, in most non-family law cases I have handled, I've needed my client to come to court exactly once (the date of trial).  Even in family law cases, it's typically been only twice (trial and a Pendente Lite hearing).

My tenant has stopped paying rent and skipped town - how long will it take before I get my property back to re-let?

So, again, every case is different, and even worse - the answer is probably different from county to county, so I'm mostly speaking from experience in Fairfax County here.  Even though your tenant has disappeared, you still need to serve them with a 5 day pay or quit notice.  The sheriff or a private process server will need to post it on the front door of the residence.  You must wait 5 days from that point before you can file your Unlawful Detainer (assuming no payment is made).  If after five days you file an unlawful detainer, the return date will usually be set 16-21 days from then.  If, at the return day, nobody shows up for the other side, you can ask for a default judgment, and, unlike many other situations where there is a 10 day waiting period, you can ask that a "writ of possession" be immediately issued.  Upon the issuance of a writ of possession, the sheriff's office will receive documents needed to execute the writ.  After usually about two weeks, you will get a call from the sheriff's office to find out your availability to be at the property.  Once you agree on a date, which must be at least four days in the future, you and a sheriff's deputy will go to the property and you will be restored to possession of it.  In short, if there is no opposition from the tenant at all, you can reasonably expect to have possession back somewhere between 40-45 days after the process begins - but it's certainly not a guarantee.

As of December 31st, my wife and I were separated.  I really don't want to have to work with her to file a joint tax return.  Can I file separately without taking the tax penalty for doing so?

Note: This question was sent to me by a reader in response to my ask the lawyer blog post.

I am not a tax attorney, but this is an issue we have to address regularly nonetheless.  My first comment would be to suggest that you try to work through your issues and file a joint return.  You are likely to each pay less tax if you do this.  If you absolutely cannot stand it, however, my understanding of the tax code is that you can file as a single taxpayer if you are legally separated.  This would avoid the penalties associated with filing in a "married, filing separately" return.  In Virginia, however, we don't have a "legal separation" concept.  Your separation becomes "legal" as soon as one person leaves and one of you decides that the separation should be permanent.  Tax law, as a surprisingly large number of federal laws do, defers to state law when determining if you are legally separated.  Since, as discussed above, Virginia considers you separated the moment one of you leaves and one of you decides that the separation should be permanent, that's been generally accepted to be all you need in Virginia to allow you to file a "single" federal tax return.

While my divorce case was pending, I lost my job and can no longer afford the mortgage on the marital residence.  I found a buyer willing to pay a good price and give us a decent bit of equity, but my husband won't sign the sales papers and wants to wait to hear how the court will divide the house at trial.  The house will be foreclosed on before trial, though, since we can't afford the mortgage!  What can I do?

This is a bit of a sticky issue.  Your husband may be right that it's a good idea to get the court's decision on how to divide the house before selling, but sometimes the reality on the ground just doesn't allow for that.  He's either being unreasonable, or it's always possible that in anger he's sabotaging your assets.  He may very well have decided that he's willing to give up his share of the house just to watch you not get yours.

Fortunately, there is a solution.  Virginia Code Section 20-103, the section that allows you to file for pendente lite relief, allows a court to make a pendente lite order "to preserve the estate of either spouse, so that it be forthcoming to meet any decree which may be made in the suit."  There is no restriction given on what courts can do to preserve the estate of either spouse, either.  So, if you can convince a court that there will be a substantial loss to both of your estates if the home goes into foreclosure, the court may well order your husband to sign off on the sale.  If he still refuses, the court can appoint a "commissioner" to sign on your husband's behalf, and by law the signature is just as valid as if your husband had signed himself.

Conclusion

And that's it for today's FAQ's.  As always, feel free to e-mail me at sleven@thebaldwinlawfirm.com if you have questions you'd like answered on a future blog post or FAQ.  In addition to eventually posting the question and answer if I think it's a good one, I'll usually also immediately respond to your e-mail with a short answer.