As always, before reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link.\
Program Note: So, today I wrapped up a two day trial, and so tomorrow I am treating myself to a day off. As a result, any blog post needs to come today, but due to this trial I really haven't been able to collect my thoughts on one. So, today's blog post will instead just be a little post I put together regarding tomorrow's anticipated Supreme Court ruling in Hobby Lobby v. Sebelius.
Introduction
Tomorrow, it seems the Supreme Court will release its decision in Hobby Lobby v. Sebelius, the challenge to the Obama administration's rule requiring health insurance to include contraception coverage, which has been challenged by religious business owners who believe the use of contraception is sin. Since they would be required to provide health insurance under the employer mandate, they argue this rule effectively requires them to fund something that violates their religious beliefs.
In this blog post, I will briefly explain what is at issue in this case, and why either side has reasons to be hopeful of victory.
Disclaimer: I am not neutral on this matter. I am a supporter of the Affordable Care Act (aka "Obamacare") and with it I support the contraception mandate. I believe it should be upheld. I try in posts like this to leave my personal biases out of it, but it is worth you understanding my position so you can add some skepticism to what I write.
This is Not a Constitutional Law Case
Most people I talk to about Hobby Lobby immediately assume this case is about the First Amendment, the Free Exercise clause. It actually is not. The constitution is not in any way at issue in Hobby Lobby. There's a reason for this - back in the early 1990's, a group of Native Americans challenged the banning of peyote as a controlled substance under federal and state law because Native Americans use peyote in religious rituals. The Supreme Court ruled that the law was constitutional, because it was not a law that actually targeted a religion - it was a rule of "general application" that was rationally related to a legitimate government interest (something called the "rational basis test").
The Congress reacted swiftly by passing the Religious Freedom Restoration Act (RFRA) which said that any law or rule of "general application" becomes invalid when applied to an individual if that law contradicts the individual's religion and the application of that law against the individual is not "narrowly tailored" to meet a "compelling government interest" (also known as the "strict scrutiny" test).
The purpose of the law was clear - most laws pass a rational basis test, but fail a strict scrutiny test, so
RFRA was designed to tip the scales in favor of the individual. Unfortunately for its supporters, RFRA did not have the far-reaching effect its authors desired. The Supreme Court later ruled that it was beyond Congress's authority to restrict state laws in the way RFRA did. Nonetheless, RFRA still stands as applicable to federal laws and regulations.
So, getting back to Hobby Lobby, the contraception mandate is clearly a government regulation of "general application." As a result, the issue in Hobby Lobby is not about the Constitution, but about RFRA. Specifically, Hobby Lobby and its supporters argue that RFRA applies, and as such strict scrutiny applies (which the mandate will likely fail), and so religious objectors should not have to include contraception in its employee health policies. The Obama administration argues that RFRA does not even apply to the mandate, and as such, rational basis review applies (which the mandate will likely pass).
Why the Obama Administration Might Win
Does a corporation have religious freedom? That's the question that underlies the Obama administration argument. Can a business, which is not a person, really have a religious belief? And if so, is that merely a reflection of the beliefs of its owners? The idea behind this argument is that our laws consider corporations as separate constructs from people. If a corporation, then, is its own entity, how can it have religious beliefs to be infringed? RFRA by its own language applies to people, not businesses.
An additional argument is that RFRA is a law, not a constitutional provision. As a result, Congress can make RFRA inapplicable to any law it wants, and Obamacare does include mention of contraceptive coverage.
Why Hobby Lobby Might Win
Does a religious person have a right to own a business without violating his religion? That question is at the heart of Hobby Lobby's argument. To them, businesses are a collection of individual owners, and while it may not be possible with a large corporation with millions of stockholders, small businesses, or businesses like Hobby Lobby which are large but still closely held (owned by only a few people) do inherit the religious beliefs of their owners. The argument, then, is that if RFRA does not apply to businesses, then religious people have no protections if they want to start a business.
Regarding the second argument of statutory revision - there is language in Obamacare about contraception, but it does not clearly overrule RFRA, which is usually what is necessary to make another law inapplicable.
Prediction
Predicting Supreme Court rulings is always dangerous, but I'll do it anyways. I predict that a 5-4 majority with the traditional conservative/liberal split will strike down the contraceptive mandate but only as it applies to businesses with a small number of owners and businesses specifically affiliated with religions. Publicly traded companies and companies which do not have a clear religious affiliation would still be required to abide by the mandate.
Wednesday, June 25, 2014
Thursday, June 19, 2014
Staying Out of Virginia Courts - Alternative Dispute Resolution
As always, before reading today's 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
Everyone knows litigation is expensive. There's long, dragged out discovery, intensive back and forth between attorneys, a lengthy trial, and sometimes seemingly endless appeals. In light of this expense, there has been a rise in interest over the past couple decades in what is known as Alternative Dispute Resolution (or ADR). ADR is a series of options available to litigants to settle their case without going to court, and without the prolonged back and forth of a typical settlement negotiation. ADR can range from rigid and formal, to extremely relaxed and informal, and as a result can often save its participants substantial sums of money.
Today I will provide a brief description and pro/con list for each of the three major types of ADR - mediation, non-binding arbitration, and binding arbitration.
Mediation
There's a good chance you already know what mediation is - in theory. You and your opponent sit in a room together with a trained mediator and try to hash out an agreement. What I've been surprised to discover, however, is that to most people that is where their concept of mediation ends. In fact, mediation is a very robust process. In many cases there are breakout sessions, where each side sits with the mediator individually, and the mediator is someone trained in both the field of law in dispute and in the more psychological components of getting people to listen to each other. A good mediator will bring a neutral party perspective of helping to foster dialogue and helping each party see where they are being unreasonable. Further, a neutral third party can help find resolutions that neither party may have thought of on their own. As a result, in my personal experience, a majority of mediations I have been involved in have been successful - although I do add the disclaimer that attending mediation usually requires the agreement of both parties, so parties that go to mediation tend to already be somewhat more likely than average to want to settle.
The advantages of mediation are pretty clear. First, it is the least expensive of the three major ADR categories. This is because you can go to mediation right away - no discovery is necessary, no evidence is presented, no witnesses are called, etc. Second, it is the form of ADR most likely to result in everyone being happy, or at least satisfied. If mediation is successful, you have crafted an agreement between the parties, nothing is forced on you. It means that, at least on some level, you agree the resolution is fair. Finally, this is the most flexible form of ADR. Since you are working on a settlement, you can come up with creative solutions that are not available in court or in the other ADR settings.
The disadvantages of mediation are, in my opinion, fairly minimal, but they do exist. For one thing, if mediation fails, you are back to square one in terms of preparing for trial, so instead of saving you money you have to add the cost of the failed mediation to the cost of the rest of the litigation. For another, depending on the sophistication of the parties it is possible for a less sophisticated party to get railroaded in a mediation session, and the mediator has very little ability to prevent that from happening. This second disadvantage can be mitigated, though, by the parties having their attorneys at the mediation.
Non-Binding Arbitration
Non-binding arbitration is basically a cross between mediation and a trial. The ultimate purpose of non-binding arbitration is to get you to reach an agreement to settle your case, but the manner of doing so is different from mediation. Specifically, instead of a trained mediator, you will go before a trained legal professional, usually an attorney or a retired judge. Instead of a discussion, you will present your case, including exhibits and witnesses. Nonetheless, it is not a full trial. The rules of evidence and the atmosphere of the room will be much more relaxed. You are not there to prove your case, just to give your arbitrator a sense of each side's position. At the end of the arbitration, the arbitrator will make a ruling. The idea behind the arbitrator's ruling is that it is a combination of what the arbitrator believes a court would rule, and what the arbitrator believes the right resolution is (usually these will be the same thing). Since the ruling is non-binding, either party can refuse to accept the ruling and continue on with the courts, but the main idea is that the ruling can provide an agreement itself, or at least a starting point for further settlement negotiation.
I have often found that when clients talk to me about going to mediation, they are actually thinking of non-binding arbitration. The two are quite different. Specifically, mediation is collaborative, while non-binding arbitration is not.
The advantages of non-binding arbitration are similar to mediation. First, you avoid many of the costs associated with a trial - while you have to do more to prepare for non-binding arbitration than mediation, you still don't need a fully fleshed out case. Second, you are much more likely to reach a settlement after non-binding arbitration since now a neutral party (rather than your friends and family and an attorney trying to get you to hire him) has told you what is likely to happen. Finally, you still have the flexibility to craft more creative solutions, using the arbitration ruling as a guide.
The disadvantages are found primarily in the cost area. If someone outright rejects the arbitration ruling, you are not only back to square one as with mediation, but you have spent much more on the arbitration than you would on mediation. In other words, non-binding arbitration is probably the worst of the three ADR categories if the ADR does not work.
Binding Arbitration
So, the final major category is binding arbitration. As you can probably guess, binding arbitration is much like non-binding arbitration except that both parties are bound by the arbitrator's ruling. Binding arbitration can be chosen by the parties by agreement, or it can be forced on a party if the underlying lawsuit is based, at least in part, on a matter which that party had contracted to settle in binding arbitration if a dispute arose. Once the arbitrator rules, generally that's it. There's no appeal and you can only challenge the ruling in court if you have a defense to the arbitration agreement itself, and in very limited other circumstances.
The big advantage of binding arbitration is finality. Once a ruling is made, it's made. There is no appeal, no more fighting, nothing.
There are a number of disadvantages to binding arbitration, however. First, it is by far the most expensive of the three ADR categories. You have to fully flesh out your cases, since the ruling will be binding, and the costs of the arbitration itself tend to be high. Second, there is basically no oversight over the arbitrator, so your rights could be trampled on with you basically having no recourse. Finally, since the arbitrator provides a binding ruling, you are basically as likely to have unhappy parties as with a trial - no agreement is ultimately reached with binding arbitration.
Lawyer's Role
Many people seem to think that one of the biggest advantages of ADR is the ability to save even more money by not having an attorney. This is a huge mistake. An attorney is necessary even in mediation to make sure your rights are protected. All three forms of ADR contemplate attorneys being involved and participating in the process, albeit to varying degrees. At a mediation an attorney is likely to say nothing unless his client is being trampled on, or he is meeting with his client in a private session. In either arbitration, however, the attorney will generally be the one presenting the case. It is very easy to be told that "this is how it is" by the other side in an ADR setting if you do not have an attorney, and I would never recommend going into an ADR setting without an attorney.
My Preference
So, you might be wondering reading all of this what I think about ADR. Personally, I'm a big fan of it. I think avoiding trial is something to aim for where possible. I will say I generally don't like binding arbitration. I think if you are going to go through all that trouble, you should just go ahead with a trial. Arbitration tends to favor the "big guy" over the "little guy" because there are fewer protections for the "little guy" in binding arbitration. For those reasons, I tend to prefer trial over binding arbitration.
Non-binding arbitration and mediation, however, are great in my opinion. I do not have a preference between the two, as I've seen many cases where mediation is probably the better choice, but a number also where non-binding arbitration seemed better. I can think of one case in particular where both my client and the other side were being clearly unreasonable, yet their positions were actually not that far apart. A mediation would have been useless because they were both absolutely dug in, so we convinced them to do a non-binding arbitration. The arbitrator made a ruling that was between their positions (not in the middle, mind you, but still between them) and they both reluctantly agreed. Sometimes being told "if you go to trial, this is what will happen, so save yourself the trouble" by a neutral third party can really help.
Conclusion
Alternative Dispute Resolution is growing in popularity as the cost of litigation continues to rise. There are many cases where one form or another of ADR is the right choice, and hiring an attorney willing to go through ADR with you can be very important. If you are involved in litigation but would like to consider an ADR option, please 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!
Introduction
Everyone knows litigation is expensive. There's long, dragged out discovery, intensive back and forth between attorneys, a lengthy trial, and sometimes seemingly endless appeals. In light of this expense, there has been a rise in interest over the past couple decades in what is known as Alternative Dispute Resolution (or ADR). ADR is a series of options available to litigants to settle their case without going to court, and without the prolonged back and forth of a typical settlement negotiation. ADR can range from rigid and formal, to extremely relaxed and informal, and as a result can often save its participants substantial sums of money.
Today I will provide a brief description and pro/con list for each of the three major types of ADR - mediation, non-binding arbitration, and binding arbitration.
Mediation
There's a good chance you already know what mediation is - in theory. You and your opponent sit in a room together with a trained mediator and try to hash out an agreement. What I've been surprised to discover, however, is that to most people that is where their concept of mediation ends. In fact, mediation is a very robust process. In many cases there are breakout sessions, where each side sits with the mediator individually, and the mediator is someone trained in both the field of law in dispute and in the more psychological components of getting people to listen to each other. A good mediator will bring a neutral party perspective of helping to foster dialogue and helping each party see where they are being unreasonable. Further, a neutral third party can help find resolutions that neither party may have thought of on their own. As a result, in my personal experience, a majority of mediations I have been involved in have been successful - although I do add the disclaimer that attending mediation usually requires the agreement of both parties, so parties that go to mediation tend to already be somewhat more likely than average to want to settle.
The advantages of mediation are pretty clear. First, it is the least expensive of the three major ADR categories. This is because you can go to mediation right away - no discovery is necessary, no evidence is presented, no witnesses are called, etc. Second, it is the form of ADR most likely to result in everyone being happy, or at least satisfied. If mediation is successful, you have crafted an agreement between the parties, nothing is forced on you. It means that, at least on some level, you agree the resolution is fair. Finally, this is the most flexible form of ADR. Since you are working on a settlement, you can come up with creative solutions that are not available in court or in the other ADR settings.
The disadvantages of mediation are, in my opinion, fairly minimal, but they do exist. For one thing, if mediation fails, you are back to square one in terms of preparing for trial, so instead of saving you money you have to add the cost of the failed mediation to the cost of the rest of the litigation. For another, depending on the sophistication of the parties it is possible for a less sophisticated party to get railroaded in a mediation session, and the mediator has very little ability to prevent that from happening. This second disadvantage can be mitigated, though, by the parties having their attorneys at the mediation.
Non-Binding Arbitration
Non-binding arbitration is basically a cross between mediation and a trial. The ultimate purpose of non-binding arbitration is to get you to reach an agreement to settle your case, but the manner of doing so is different from mediation. Specifically, instead of a trained mediator, you will go before a trained legal professional, usually an attorney or a retired judge. Instead of a discussion, you will present your case, including exhibits and witnesses. Nonetheless, it is not a full trial. The rules of evidence and the atmosphere of the room will be much more relaxed. You are not there to prove your case, just to give your arbitrator a sense of each side's position. At the end of the arbitration, the arbitrator will make a ruling. The idea behind the arbitrator's ruling is that it is a combination of what the arbitrator believes a court would rule, and what the arbitrator believes the right resolution is (usually these will be the same thing). Since the ruling is non-binding, either party can refuse to accept the ruling and continue on with the courts, but the main idea is that the ruling can provide an agreement itself, or at least a starting point for further settlement negotiation.
I have often found that when clients talk to me about going to mediation, they are actually thinking of non-binding arbitration. The two are quite different. Specifically, mediation is collaborative, while non-binding arbitration is not.
The advantages of non-binding arbitration are similar to mediation. First, you avoid many of the costs associated with a trial - while you have to do more to prepare for non-binding arbitration than mediation, you still don't need a fully fleshed out case. Second, you are much more likely to reach a settlement after non-binding arbitration since now a neutral party (rather than your friends and family and an attorney trying to get you to hire him) has told you what is likely to happen. Finally, you still have the flexibility to craft more creative solutions, using the arbitration ruling as a guide.
The disadvantages are found primarily in the cost area. If someone outright rejects the arbitration ruling, you are not only back to square one as with mediation, but you have spent much more on the arbitration than you would on mediation. In other words, non-binding arbitration is probably the worst of the three ADR categories if the ADR does not work.
Binding Arbitration
So, the final major category is binding arbitration. As you can probably guess, binding arbitration is much like non-binding arbitration except that both parties are bound by the arbitrator's ruling. Binding arbitration can be chosen by the parties by agreement, or it can be forced on a party if the underlying lawsuit is based, at least in part, on a matter which that party had contracted to settle in binding arbitration if a dispute arose. Once the arbitrator rules, generally that's it. There's no appeal and you can only challenge the ruling in court if you have a defense to the arbitration agreement itself, and in very limited other circumstances.
The big advantage of binding arbitration is finality. Once a ruling is made, it's made. There is no appeal, no more fighting, nothing.
There are a number of disadvantages to binding arbitration, however. First, it is by far the most expensive of the three ADR categories. You have to fully flesh out your cases, since the ruling will be binding, and the costs of the arbitration itself tend to be high. Second, there is basically no oversight over the arbitrator, so your rights could be trampled on with you basically having no recourse. Finally, since the arbitrator provides a binding ruling, you are basically as likely to have unhappy parties as with a trial - no agreement is ultimately reached with binding arbitration.
Lawyer's Role
Many people seem to think that one of the biggest advantages of ADR is the ability to save even more money by not having an attorney. This is a huge mistake. An attorney is necessary even in mediation to make sure your rights are protected. All three forms of ADR contemplate attorneys being involved and participating in the process, albeit to varying degrees. At a mediation an attorney is likely to say nothing unless his client is being trampled on, or he is meeting with his client in a private session. In either arbitration, however, the attorney will generally be the one presenting the case. It is very easy to be told that "this is how it is" by the other side in an ADR setting if you do not have an attorney, and I would never recommend going into an ADR setting without an attorney.
My Preference
So, you might be wondering reading all of this what I think about ADR. Personally, I'm a big fan of it. I think avoiding trial is something to aim for where possible. I will say I generally don't like binding arbitration. I think if you are going to go through all that trouble, you should just go ahead with a trial. Arbitration tends to favor the "big guy" over the "little guy" because there are fewer protections for the "little guy" in binding arbitration. For those reasons, I tend to prefer trial over binding arbitration.
Non-binding arbitration and mediation, however, are great in my opinion. I do not have a preference between the two, as I've seen many cases where mediation is probably the better choice, but a number also where non-binding arbitration seemed better. I can think of one case in particular where both my client and the other side were being clearly unreasonable, yet their positions were actually not that far apart. A mediation would have been useless because they were both absolutely dug in, so we convinced them to do a non-binding arbitration. The arbitrator made a ruling that was between their positions (not in the middle, mind you, but still between them) and they both reluctantly agreed. Sometimes being told "if you go to trial, this is what will happen, so save yourself the trouble" by a neutral third party can really help.
Conclusion
Alternative Dispute Resolution is growing in popularity as the cost of litigation continues to rise. There are many cases where one form or another of ADR is the right choice, and hiring an attorney willing to go through ADR with you can be very important. If you are involved in litigation but would like to consider an ADR option, please 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, June 12, 2014
Virginia Divorce Law: How to Initiate a Separation
As always, before reading this post please review my disclaimer by clicking the above link or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
In my very first blog post, I explained how if your spouse, regardless of gender, regardless of reason, demands that you "get out," your answer should be "no." There's a flip side to that issue, however. What if you are trapped in a miserable marriage, a broken marriage, one that needs to end, but you know you need to be separated for a time for a divorce to happen and your spouse is refusing to leave? What do you do then?
Today's blog post discusses strategies for properly starting a separation so that you can begin the process towards a divorce.
Agreements are Always Easiest
I know some people might find this surprising for me to say, but in my experience, most couples getting ready to get a divorce actually still get along fairly well. You may not love each other anymore, but you still have at least some feelings of friendship towards each other and certainly do not want to hurt one another (frequently that desire comes later, but I'm not talking about that right now). My boss likes to refer to this as the "era of good feelings," and it's the perfect time to sit down with your spouse and discuss what each of you wants out of your divorce.
This discussion should include the separation itself, specifically who will leave, or maybe even if both of you will leave and sell or get rid of the place. The discussion should also include who will pay the mortgage/rent and other costs associated with the marital residence. If you are able to make an agreement that would certainly be best, but I strongly recommend you commit your agreement to writing so that the staying spouse cannot later accuse the leaving spouse of "desertion," and so that your obligations will be clear.
Of course, I always recommend that this agreement be done as a formal "Agreement to Separate," which an attorney can draft for you, but laying it all out in writing in an e-mail with a response e-mail confirming agreement should usually suffice. You can disprove "desertion" simply by producing evidence of agreement, even if there is no signed paper. When handled this way, separations tend to be less contested and usually get the whole process off on a good footing towards settlement.
Pendente Lite Motion in Fault-Based Divorces
If you cannot reach an agreement, the next route to consider is whether or not you have grounds for a divorce on a fault basis. This would include adultery, desertion, cruelty (physical abuse), and mental cruelty. If you do, you can file for divorce without a separation (although all of these except adultery require a year of separation eventually before your divorce is final). Once you do, you can file a pendent lite motion (a motion "pending the litigation") to get the court to order your spouse to leave and give you exclusive use and possession of the marital residence.
Now, there are some major considerations to this approach. First of all, filing for divorce on a fault ground is usually taken as a declaration of war. Do not take this approach unless you are ready for a real fight. Second, courts do not like to "create" separations. While some courts believe that they have jurisdiction to order exclusive use and possession pendente lite even without a threat of violence (this is actually a debated point), almost none will if you are still living together. As a result, it is unlikely your request for exclusive use and possession will be granted if you are still living together unless there's a real threat of violence, and if that is the case, you might want to consider getting a protective order as a much more effective and protective alternative than a pendente lite order. This approach may be better since a protective order is immediately enforceable by the police, whereas a pendente lite order typically requires a contempt hearing if violated.
Now, if you are filing based on "desertion" or something similar where your spouse has already left the marital residence and you are just trying to keep him from coming back, that is more likely to be successful. Nonetheless, it is still not a guarantee.
Separation Under the Same Roof
If none of the above works and you have a home that is big enough, you could initiate a separation under the same roof. My blog post on pre-divorce separation and cohabitation includes a section on how to separate under the same roof. This approach allows you to be separated for the requisite time and then file. Presumably, if the court finds you have met all the requirements, a court will order how the marital residence is to be divided as part of the divorce decree. Of course, this requires you continuing to live in the same house with your spouse all the way through the divorce, which could be a problem if your divorce gets nasty.
Moving Out
If none of the above options are available to you, then I'm afraid you may have little choice but to just move out yourself. We always recommend this as a last resort because you can practically guarantee you will not be awarded the marital residence if you do this, and if you have kids you almost definitely will not get custody if you leave them behind, but you could very well also hurt your custody chances if you take them with you - especially if you do it without the knowledge or consent of your spouse. Further, this risks subjecting you to a "desertion" claim, although a showing that the marriage was already broken could probably defeat such a claim. Nonetheless, if your spouse won't leave, you don't have a fault ground for divorce that would get you a court order, and you can't separate under the same roof, this may be your only option to get the clock ticking on the separation. If you take this option, try to leave in the least disruptive manner as you can, and if you have kids, take them with you (unless you don't want custody) but make sure you are moving to somewhere very close by (the closer, the better - if the apartment next door is available, go for it).
Conclusion
In some cases, actually initiating the separation period is the hardest part of a divorce. It is not a simple process precisely because you cannot demand that your spouse leave. If you are looking to get advice on beginning a separation, please 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, and anything you tell us is kept confidential under attorney-client privilege, even if you don't hire us.
Introduction
In my very first blog post, I explained how if your spouse, regardless of gender, regardless of reason, demands that you "get out," your answer should be "no." There's a flip side to that issue, however. What if you are trapped in a miserable marriage, a broken marriage, one that needs to end, but you know you need to be separated for a time for a divorce to happen and your spouse is refusing to leave? What do you do then?
Today's blog post discusses strategies for properly starting a separation so that you can begin the process towards a divorce.
Agreements are Always Easiest
I know some people might find this surprising for me to say, but in my experience, most couples getting ready to get a divorce actually still get along fairly well. You may not love each other anymore, but you still have at least some feelings of friendship towards each other and certainly do not want to hurt one another (frequently that desire comes later, but I'm not talking about that right now). My boss likes to refer to this as the "era of good feelings," and it's the perfect time to sit down with your spouse and discuss what each of you wants out of your divorce.
This discussion should include the separation itself, specifically who will leave, or maybe even if both of you will leave and sell or get rid of the place. The discussion should also include who will pay the mortgage/rent and other costs associated with the marital residence. If you are able to make an agreement that would certainly be best, but I strongly recommend you commit your agreement to writing so that the staying spouse cannot later accuse the leaving spouse of "desertion," and so that your obligations will be clear.
Of course, I always recommend that this agreement be done as a formal "Agreement to Separate," which an attorney can draft for you, but laying it all out in writing in an e-mail with a response e-mail confirming agreement should usually suffice. You can disprove "desertion" simply by producing evidence of agreement, even if there is no signed paper. When handled this way, separations tend to be less contested and usually get the whole process off on a good footing towards settlement.
Pendente Lite Motion in Fault-Based Divorces
If you cannot reach an agreement, the next route to consider is whether or not you have grounds for a divorce on a fault basis. This would include adultery, desertion, cruelty (physical abuse), and mental cruelty. If you do, you can file for divorce without a separation (although all of these except adultery require a year of separation eventually before your divorce is final). Once you do, you can file a pendent lite motion (a motion "pending the litigation") to get the court to order your spouse to leave and give you exclusive use and possession of the marital residence.
Now, there are some major considerations to this approach. First of all, filing for divorce on a fault ground is usually taken as a declaration of war. Do not take this approach unless you are ready for a real fight. Second, courts do not like to "create" separations. While some courts believe that they have jurisdiction to order exclusive use and possession pendente lite even without a threat of violence (this is actually a debated point), almost none will if you are still living together. As a result, it is unlikely your request for exclusive use and possession will be granted if you are still living together unless there's a real threat of violence, and if that is the case, you might want to consider getting a protective order as a much more effective and protective alternative than a pendente lite order. This approach may be better since a protective order is immediately enforceable by the police, whereas a pendente lite order typically requires a contempt hearing if violated.
Now, if you are filing based on "desertion" or something similar where your spouse has already left the marital residence and you are just trying to keep him from coming back, that is more likely to be successful. Nonetheless, it is still not a guarantee.
Separation Under the Same Roof
If none of the above works and you have a home that is big enough, you could initiate a separation under the same roof. My blog post on pre-divorce separation and cohabitation includes a section on how to separate under the same roof. This approach allows you to be separated for the requisite time and then file. Presumably, if the court finds you have met all the requirements, a court will order how the marital residence is to be divided as part of the divorce decree. Of course, this requires you continuing to live in the same house with your spouse all the way through the divorce, which could be a problem if your divorce gets nasty.
Moving Out
If none of the above options are available to you, then I'm afraid you may have little choice but to just move out yourself. We always recommend this as a last resort because you can practically guarantee you will not be awarded the marital residence if you do this, and if you have kids you almost definitely will not get custody if you leave them behind, but you could very well also hurt your custody chances if you take them with you - especially if you do it without the knowledge or consent of your spouse. Further, this risks subjecting you to a "desertion" claim, although a showing that the marriage was already broken could probably defeat such a claim. Nonetheless, if your spouse won't leave, you don't have a fault ground for divorce that would get you a court order, and you can't separate under the same roof, this may be your only option to get the clock ticking on the separation. If you take this option, try to leave in the least disruptive manner as you can, and if you have kids, take them with you (unless you don't want custody) but make sure you are moving to somewhere very close by (the closer, the better - if the apartment next door is available, go for it).
Conclusion
In some cases, actually initiating the separation period is the hardest part of a divorce. It is not a simple process precisely because you cannot demand that your spouse leave. If you are looking to get advice on beginning a separation, please 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, and anything you tell us is kept confidential under attorney-client privilege, even if you don't hire us.
Tuesday, June 10, 2014
Classic Law is Your Friend: Virginia Guardianship/Conservatorship Law
As noted last week, beginning this week and every Tuesday hereafter (at least, I hope every Tuesday hereafter) I will be making a "Classic" Law is Your Friend post where I will re-post a previous blog post that I feel is worth some attention but may be overshadowed due to other posts or how long ago the original was posted.
Today's Classic blog post covers guardianship and conservatorship law in Virginia and was originally posted on May 23, 2013 with the title "What To Do When Dad's Sending His Money to a Nigerian Prince."
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.
Today's Classic blog post covers guardianship and conservatorship law in Virginia and was originally posted on May 23, 2013 with the title "What To Do When Dad's Sending His Money to a Nigerian Prince."
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.
Thursday, June 5, 2014
Statutes of Limitations in Virginia: What You Need to Know
As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link. As always, legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
I have found during my legal career that the concept of statutes of limitations is something almost everyone knows something about, but barely anyone knows all that they need to know. Most people, for example, know (although this "knowledge" is somewhat incorrect, as I will explain later) that in civil law a statute of limitations is a point at which someone "cannot be sued" due to the lapse of time. Some people might even know the amount of time certain statutes of limitations are set at. Most people, however, do not seem to know when the statute starts running, what causes the statute to stop running (referred to as "tolling"), what kinds of cases the statute applies to, and how to actually use the statute as a defense. In today's blog post, I will address some of the most important things to know about statutes of limitations.
Where the Statute Comes From
As you might guess from the name, "statutes of limitations" are statutory - as in, they come from the written law of a government - rather than being common law. This means where there is no statute setting out a limitations period, there is no statute of limitations. So yes, there are types of lawsuits for which there is no statute of limitations at all. For example, divorce. You and your spouse could have separated 30 years ago, and you can still file a suit for divorce which includes a request for alimony (although practically speaking it's not likely the alimony will be granted at that point).
Now there is a doctrine in equity (to see a discussion about the difference between "common law" and "equity" see my post regarding "specific performance" in contract law) called "laches." Laches is a rule developed by the court that basically forbids someone from bringing a lawsuit after it has been so long that bringing the lawsuit now is unfair. It does not have a defined amount of time, and can be used in both law and equity cases, and even in cases where there is also a statute of limitations (although it is very rarely successful in such cases). Because of the uncertainty of laches, however, and the fact that there are several kinds of cases it does not apply to by law, it is a much weaker defense than a statute of limitations.
So, Where Can I Find the Statutes of Limitations?
So, now that you know statutes of limitations come from written law, you might be wondering where in the Virginia Code to find them. The answer is, they are all over the place, frequently well hidden, and not at all easy to find. For example, the statute of limitations on bringing an equitable distribution action after divorce is found in Title 20 of the Virginia Code, while the statute of limitations on defamation actions is found in Title 8.01. The result becomes that a lawyer generally just has to know them (in fact, Virginia's specific statutes of limitations feature prominently in the Virginia Bar Exam). For simplicity sake, I will provide a list of the most important statutes here (although this is by no means an exhaustive list, and it's important to know that there are exceptions to all of these, but if I don't list it here, it's an uncommon exception):
When Does the Clock Start?
So, that's a very nice list above, but it doesn't do you much good if you don't know when the clock starts. So, the clock starts on the date that a cause of action "accrues." As you might imagine, the basic rule is simple, but there are numerous exceptions. The basic rule is that the cause of action accrues on the date of injury or the date the contract is broken - whether you know it has occurred or not. There are numerous exceptions to this rule, however. Here are some of the key exceptions to the general rule of when accrual occurs:
So, now that you know the length of the common statutes and when the clock starts ticking, the next important thing to know is if anything stops the clock. There are many provisions of law that provide for "tolling" of the statute of limitations, which basically say that while such event is ongoing, the statute is not running. Some tolling statutes are permanent (meaning that if you have a 5 year statute, but the statute is tolled for 1 year, you really have a 6 year statute), and some are temporary (so if time would have expired while the statute was being tolled, you only have a set amount of time after the tolling ends to bring the suit, no matter how long the statute was tolled). Here are some of the most common examples of situations where a statute is tolled:
Ok, I've Definitely Been Sued Outside of the Statute of Limitations - What Do I Do?
If after reading all of the above you believe you are being sued after the statute of limitations, you might wonder what to do. After all, most people erroneously believe a lawsuit simply cannot be brought after the limitations period ends. This is not true! A lawsuit can be brought at any time.
Those of you who read my blog post three weeks ago will remember that the statute of limitations is an affirmative defense. That means it's actually on you, the defendant, to not only raise this defense, but prove it. If your case is in Circuit Court and you file an Answer without mentioning the statute of limitations, you've waived it, and the suit will move forward. Same in the General District Court if pleadings are ordered and you fail to raise it in your Answer and Grounds of Defense.
This is one of the reasons understanding the statute of limitations is so important to a defendant. It is your burden to raise and prove the defense and failure to do so loses you the entire defense.
Conclusion
Statutes of limitations really are dangerous elements of civil law for unrepresented people. Lots of people have abstract knowledge of limitations periods, but almost no one outside the legal profession knows how to use that knowledge. If you are involved in a lawsuit with a statute of limitations period and want advice on moving forward, 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!
Introduction
I have found during my legal career that the concept of statutes of limitations is something almost everyone knows something about, but barely anyone knows all that they need to know. Most people, for example, know (although this "knowledge" is somewhat incorrect, as I will explain later) that in civil law a statute of limitations is a point at which someone "cannot be sued" due to the lapse of time. Some people might even know the amount of time certain statutes of limitations are set at. Most people, however, do not seem to know when the statute starts running, what causes the statute to stop running (referred to as "tolling"), what kinds of cases the statute applies to, and how to actually use the statute as a defense. In today's blog post, I will address some of the most important things to know about statutes of limitations.
Where the Statute Comes From
As you might guess from the name, "statutes of limitations" are statutory - as in, they come from the written law of a government - rather than being common law. This means where there is no statute setting out a limitations period, there is no statute of limitations. So yes, there are types of lawsuits for which there is no statute of limitations at all. For example, divorce. You and your spouse could have separated 30 years ago, and you can still file a suit for divorce which includes a request for alimony (although practically speaking it's not likely the alimony will be granted at that point).
Now there is a doctrine in equity (to see a discussion about the difference between "common law" and "equity" see my post regarding "specific performance" in contract law) called "laches." Laches is a rule developed by the court that basically forbids someone from bringing a lawsuit after it has been so long that bringing the lawsuit now is unfair. It does not have a defined amount of time, and can be used in both law and equity cases, and even in cases where there is also a statute of limitations (although it is very rarely successful in such cases). Because of the uncertainty of laches, however, and the fact that there are several kinds of cases it does not apply to by law, it is a much weaker defense than a statute of limitations.
So, Where Can I Find the Statutes of Limitations?
So, now that you know statutes of limitations come from written law, you might be wondering where in the Virginia Code to find them. The answer is, they are all over the place, frequently well hidden, and not at all easy to find. For example, the statute of limitations on bringing an equitable distribution action after divorce is found in Title 20 of the Virginia Code, while the statute of limitations on defamation actions is found in Title 8.01. The result becomes that a lawyer generally just has to know them (in fact, Virginia's specific statutes of limitations feature prominently in the Virginia Bar Exam). For simplicity sake, I will provide a list of the most important statutes here (although this is by no means an exhaustive list, and it's important to know that there are exceptions to all of these, but if I don't list it here, it's an uncommon exception):
- Breach of Written Contract: 5 years
- Breach of Oral or Implied Contract: 3 years
- Tort claim for personal injury: 2 years
- Tort claim for sexual abuse of a minor: 20 years
- Tort claim by a parent for their own costs of caring for a personally injured minor: 5 years
- Tort claim for property damage: 5 years
- Defamation: 1 year
- Personal actions in tort not otherwise specified: 2 years
- Claim for Equitable Division of Property after divorce granted in another state: 2 years
- Wrongful death: 2 years
- Fraud: 2 years
- Medical Malpractice: 2 years
- Other Professional (including Legal) Malpractice: 3 years if the professional was hired without a written contract, 5 years if there is a written contract
- Enforcement of Judgments*: 20 years, with the right to renew for another 20 for good cause shown
When Does the Clock Start?
So, that's a very nice list above, but it doesn't do you much good if you don't know when the clock starts. So, the clock starts on the date that a cause of action "accrues." As you might imagine, the basic rule is simple, but there are numerous exceptions. The basic rule is that the cause of action accrues on the date of injury or the date the contract is broken - whether you know it has occurred or not. There are numerous exceptions to this rule, however. Here are some of the key exceptions to the general rule of when accrual occurs:
- In medical malpractice, if a foreign object is left in your body, fraud prevented you from discovering the error, or your doctor failed to diagnose cancer, the date of accrual is the date of discovery of the error, however the statute becomes one years from the date of the error, or one year from the date of discovery of the error, whichever is later.
- For service contracts where both payment and service is ongoing, along with open accounts generally (for example, credit cards) the date of accrual is the date the contract is terminated, or the date of the last payment made under the contract, whichever is later.
- In the malpractice context (including medical and legal), efforts by the professional to fix the error generally cause the date of accrual to not occur until those efforts end.
- In cases of legal malpractice, the date of accrual is the date the whole legal representation ended (even if the actual malpractice occurred early in the representation)
- In cases of fraud, the date of accrual is the date of discovery of the fraud (or when a person acting reasonably should have discovered the fraud)
- In cases of personal injury for asbestos exposure, the date of accrual occurs when a relevant diagnosis has been made (except that no action can be brought more than two years after the person's death)
- In cases of malicious prosecution or abuse of process, the accrual date is the date that the relevant criminal or civil action is dismissed
- In cases of sexual abuse of a minor, the date of accrual is the date that the minor turns 18
So, now that you know the length of the common statutes and when the clock starts ticking, the next important thing to know is if anything stops the clock. There are many provisions of law that provide for "tolling" of the statute of limitations, which basically say that while such event is ongoing, the statute is not running. Some tolling statutes are permanent (meaning that if you have a 5 year statute, but the statute is tolled for 1 year, you really have a 6 year statute), and some are temporary (so if time would have expired while the statute was being tolled, you only have a set amount of time after the tolling ends to bring the suit, no matter how long the statute was tolled). Here are some of the most common examples of situations where a statute is tolled:
- You file a lawsuit with regards to the subject and the lawsuit is dismissed without prejudice (so you have the right to re-file) except if the dismissal is due to a nonsuit - this is a permanent toll
- You file a lawsuit with regards to the subject and the lawsuit is voluntarily non-suited - this is a permanent toll and you can re-file within the new limitations period caused by the suit being tolled during the pendency of the lawsuit, or within six months after the dismissal, whichever is later.
- The plaintiff is incapacitated at the date of accrual - this is a permanent toll and ends when the incapacity ends (note that a person under 18 who is not emancipated is automatically considered "incapacitated" except in the case of medical malpractice)
- The plaintiff becomes incapacitated during the statute of limitations period and has no conservator, guardian or committee - this is a permanent toll and ends when the incapacity ends
- Death of a potential plaintiff - this is a temporary toll; once a personal representative (administrator, executor, etc.) is appointed for the estate, the suit must be brought within the original limitations period or within one year after appointment of the personal representative, whichever is later
- Death of a potential defendant - this is a temporary toll; once a personal representative (administrator, executor, etc.) is appointed for the estate, the suit must be brought within the original limitations period or within one year after appointment of the personal representative, whichever is later
- The time during with the bringing of a lawsuit is barred by an injunction or bankruptcy - this is a permanent toll and ends when the injunction expires or bankruptcy case ends
- If your lawsuit is for something for which the defendant has also been criminally charged, the statute is tolled while the prosecution is pending - this is a permanent toll and ends when the criminal case ends
Ok, I've Definitely Been Sued Outside of the Statute of Limitations - What Do I Do?
If after reading all of the above you believe you are being sued after the statute of limitations, you might wonder what to do. After all, most people erroneously believe a lawsuit simply cannot be brought after the limitations period ends. This is not true! A lawsuit can be brought at any time.
Those of you who read my blog post three weeks ago will remember that the statute of limitations is an affirmative defense. That means it's actually on you, the defendant, to not only raise this defense, but prove it. If your case is in Circuit Court and you file an Answer without mentioning the statute of limitations, you've waived it, and the suit will move forward. Same in the General District Court if pleadings are ordered and you fail to raise it in your Answer and Grounds of Defense.
This is one of the reasons understanding the statute of limitations is so important to a defendant. It is your burden to raise and prove the defense and failure to do so loses you the entire defense.
Conclusion
Statutes of limitations really are dangerous elements of civil law for unrepresented people. Lots of people have abstract knowledge of limitations periods, but almost no one outside the legal profession knows how to use that knowledge. If you are involved in a lawsuit with a statute of limitations period and want advice on moving forward, 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!
Tuesday, June 3, 2014
"Classic" Law is Your Friend
As hard as it is for me to believe, as of just a little less than three weeks ago, this blog is now a year old. Putting this blog together and writing posts for it has been one of the more fun things I've done as a lawyer, and the feedback I've gotten, both online and in person, about the ways in which this blog has helped people has been very rewarding.
I still have many areas of law that I want to write about, and think I have at least another year's worth of topics (hopefully more), but it occurs to me that some of my older posts may start getting lost in the shuffle. As I do fewer and fewer "overview" type posts and get into some more detailed nuances of law, the basics become more important than ever. Combined with the fact that laws change (in fact, I've had three posts already rendered at least partially obsolete by new laws since this blog started), I don't want my new readers to necessarily be left behind.
With that in mind, I am announcing the creation of what I am calling "Classic" Law is Your Friend. Basically, every Tuesday (or as close to every Tuesday as I can) I will pick a blog post that I have previously posted and re-post it. If the law has changed since the original post, I will update it, otherwise I will simply copy it. This will not be done in any order, rather I will simply be re-posting blog posts that strike me as worth re-posting on any given Tuesday. Does this mean some posts might be re-posted twice, and some might never be re-posted at all? Yes, that's possible, although I won't do multiple re-postings too close together.
So, tune in next Tuesday to see which post I pick to lead off my "Classic" Law is Your Friend, and thank you for reading.
I still have many areas of law that I want to write about, and think I have at least another year's worth of topics (hopefully more), but it occurs to me that some of my older posts may start getting lost in the shuffle. As I do fewer and fewer "overview" type posts and get into some more detailed nuances of law, the basics become more important than ever. Combined with the fact that laws change (in fact, I've had three posts already rendered at least partially obsolete by new laws since this blog started), I don't want my new readers to necessarily be left behind.
With that in mind, I am announcing the creation of what I am calling "Classic" Law is Your Friend. Basically, every Tuesday (or as close to every Tuesday as I can) I will pick a blog post that I have previously posted and re-post it. If the law has changed since the original post, I will update it, otherwise I will simply copy it. This will not be done in any order, rather I will simply be re-posting blog posts that strike me as worth re-posting on any given Tuesday. Does this mean some posts might be re-posted twice, and some might never be re-posted at all? Yes, that's possible, although I won't do multiple re-postings too close together.
So, tune in next Tuesday to see which post I pick to lead off my "Classic" Law is Your Friend, and thank you for reading.
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