As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed herein apply only to the Commonwealth of Virginia.
Introduction
About a month ago, I wrote a post answering common questions I had received by e-mail or by comment regarding past blog posts I had written. I received a great deal of positive feedback for this post, as it seemed to address a number of questions people had. I realized, however, that I only got through about half the questions I wanted to address, plus some more have been asked to me since I wrote that post. To that end, I have decided a second post is warranted, and I may continue to do these now and then into the future, along with my occasional FAQ's that don't address previously covered blog topics.
As I said last time, sit back, relax, and see what you can learn from the questions of others.
"You previously said that there is a difference between a retainer and a fee deposit - that technically, a retainer is something you pay to have a lawyer on call, while a fee deposit is essentially an advance on attorneys' fees. Thus, a retainer is typically kept by the lawyer and you are charged extra for any time work, while a fee deposit is only kept if the lawyer does that amount of work, and you are only charged extra once your deposit is used up. I just had a consult with a lawyer who charges a 'refundable retainer.' What is that?"
Ok, if you read my full post, I also mentioned that many lawyers seem to use the word "retainer" and "fee deposit" interchangeably, something that personally drives me crazy. It sounds like that's what's happening here - the lawyer is actually charging a fee deposit. That being said, I cannot be certain without reviewing the actual fee agreement. It is possible that he really is charging a retainer, but it is refundable if one thing or another doesn't happen, so it is worth reviewing the fee agreement carefully. Usually, however, when I see a "refundable retainer," it's the same thing as a fee deposit.
"You previously said that an attorney cannot discuss a case with an opposing party if that party is represented, and might be safest by simply ignoring that person if spoken to. Well, I'm from a small community and my husband's divorce attorney's son is in the same class as my daughter, and I just discovered we both volunteered to be chaperones on the same field trip. I think it would be very awkward if we aren't talking to each other, and I don't want to bring our case into the classroom, but they need the chaperones. What should I do?"
No, I did not make that question up, although I edited a couple facts so as to help keep the people involved anonymous. The reality is, lawyers are people too, we live in the community just like everyone else, and things like the above are inevitable. I have the advantage of living in Northern Virginia, a very large community, so this is pretty rare for me, although I do run into one former party opponent near weekly due to visitation because I'm neighbors with my former client. In smaller communities, however, this happens regularly.
Here's the thing to remember - the other lawyer can talk to you about anything other than the case. Moreover, remember, this is probably just as uncomfortable for that lawyer as it is for you. He won't want his son's field trip ruined any more than you want your daughter's. This is also a good time to remember that while your case is your life, for the lawyer it's his job. No matter how sleazy your husband has behaved, his lawyer has nothing personal against you, and in fairness, you shouldn't have anything against his lawyer.
If you can keep these things in mind, hopefully you can remain cordial and chat comfortably (though still preferably a limited amount), so long as you steer completely clear of talking about the case or anything related to the case. If your case involves custody, don't talk about how much you do in the classroom, how happy your daughter is with you, etc. Just use common sense, the lawyer will do the same, and you should probably be all right. Just also be aware that if you do cross the line, the lawyer will have to stop talking to you - so don't be offended if he does.
"You previously said that if my boyfriend moves in with me but then we break up, I can't just kick him out if he refuses to leave, even though the apartment's in my name only. You also said that if I fear violence while in the process of evicting him, I should consider relocating temporarily until the eviction is complete. Well, that's not something I can actually afford to do, but my boyfriend has directly said that if I try to evict him he will hurt me. Do I have any other options?"
Your situation is actually distressingly common, and there is another option for a situation like yours - you can get a protective order. I lay out the procedures for pursuing a protective order in a post from April. Remember that you will go to the J&DR Court to get this order, as your ex is someone who "cohabits" with you, and thus qualifies as a "family or household member." The advantage of a protective order is that you can get a preliminary or emergency protective order the day you file, in which case the police can come that day and remove your ex from the property, with him being forbidden from returning. If you then succeed in getting the preliminary protective order converted into a full protective order, your ex will be forbidden from returning for two years. During that time, he will have to establish a new residence, meaning your residence will no longer be his residence, and as such you will not have to go through the eviction process at all.
The down side to this approach, however, is that you actually have to have some evidence that you are in danger. Just an underlying fear or intuition isn't good enough. A threat certainly works, but if you are just concerned, that cannot be the basis for a protective order. Obviously, however, anything done to threaten you after you have filed the unlawful detainer could still then be turned around and used to get a protective order.
"You previously said that if someone receiving spousal support remarries but doesn't tell the support payor and continues collecting support, the payee can be required to reimburse the support received all the way back to the date of remarriage, plus interest. What about if the payee, instead of getting remarried, has been 'cohabiting with another in a relationship analogous to marriage' for 5 years - can the payor get the past 4 years' worth of payments back?"
It's always fun as a lawyer to get into areas of law that are unsettled, and this is one of them. There is no case law on this point to address this, and the one case I am aware of where it came up (and I am only aware of this because I was actually involved in the case), it turned out there was no cohabitation, so the question never got addressed.
The statute at issue is Virginia Code Section 20-110, with the relevant provision allowing for reimbursement of past payments added in 2000. So, on the one hand, the answer would seem to be that this section does not apply to cohabitation, because the section expressly refers to remarriage. Additionally, the 2000 amendment was added after the 1997 law that made cohabitation a terminating event. Many attorneys argue, however, that the policy rationale for the affirmative duty to inform is equally applicable, and that the 2000 amendment was not meant to be so construed, but it was applied to a section that had not otherwise been amended since 1975.
To me, the strongest argument against making the affirmative duty to inform (and with it, the ability to recoup past payments) applicable to cohabitation cases is that the General Assembly has, on several occasions since 2000, had bills in front of it proposing specifically adding cohabitation to Section 20-110, and has repeatedly rejected those bills. To me, that's a clear message that the General Assembly does not consider the law to currently cover cohabitation, and does not want the law to cover cohabitation.
"You previously said that if a judgment debtor declares bankruptcy and gets a discharge, judgments against him from prior to the filing of the bankruptcy petition are discharged and uncollectible (with the possible exception of where there's a judgment lien). Well, I just discovered that a judgment debtor from a lawsuit I won 3 years ago filed bankruptcy 2 years ago. I didn't know at the time, and he didn't list my debt on his petition. What is the status of my judgment?"
Well, the bankruptcy code puts a lot of burden on the creditor. If you are notified of or learn about a bankruptcy while it is pending, it is on you to make sure your debt is listed - you must file an objection if it is not, otherwise you miss out on any payment (if there is any) and your debt is still discharged. If, however, you were not noticed, you did not learn about the bankruptcy, and there is no reasonable way you should be expected to have known about the bankruptcy, then the failure to notify you actually voids any discharge on that debt - even if your debt had been listed. Now there are caveats to this, but the main point is, if you had no notice or knowledge of the bankruptcy, your judgment has not been discharged.
Conclusion
As with last time, I have not answered all of the questions I would like to, and hope to do another post like this again in the near future. As always, I welcome questions (and challenges!) either by e-mail or by comment to a blog post. If you are interested in retaining my services, please e-mail SLeven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation. Our initial consultations are free for up to half an hour!
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